H1B Visa RFE’s – Top 10 Reasons Why RFE’s Were Issued by USCIS

62.3% of H1B Visa applications issued RFE were approved for FY 2018.

In other words:

About 38 H1B Visa Petitions were Denied for every 100 after RFE’s were issued.

What are the reasons for USCIS to issue an RFE for H1B Visa applications?

Top 10 Reasons for H1B Visa RFE’s issued FY 2018 along with a short description of reasons for each type of RFE’s was published by  USCIS recently.

A list of Top 10 H1B Visa RFE’s doesn’t really provide any value to you.

By the way, RFE stands for Request for Evidence.

That’s why in this article, we go way beyond the list of Top 10 H1B Visa RFEs.

You will find the following

• Real examples of H1B RFE’s,
• USCIS RFE Notices for all 10 H1B Visa RFE Reasons
• Explanations from the USCIS for H1B Visa Petition Denial after RFE
• Actual H1B Visa RFE’s and Denial Notices from USCIS.

If you are applying for H1B Visa 2020 Cap seasons, you have first get selected in the lottery, then get H1B Visa approval.

But wait, USCIS Said they will no longer Issue RFE’s 

Here is the Memo from USCIS about that policy about RFE.

Pay close attention to these words – Frivolous and substantially incomplete filings.

If your petition falls under those category, then its likely to be denied without an RFE.

Let the count down begin.

#10 – H1B Visa Filing Fees

The petitioner did not establish that they paid all required H-1B filing fees.

If your H1B Visa Petition is received an RFE for the filing fee, I think it’s 100%  human error (or oversight).

Paralegal handling your case or the HR person filing the H1B Visa petition or Immigration Attorney should have missed a check or perhaps sent incorrect filing fee.

Here is an example from USCIS where incorrect filing fee was submitted.

It’s not rocket science to understand the H1B Visa Filing Fees. But, we are humans 🙂

#9 – Itinerary

The petitioner did not meet the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B), which requires petitioners to submit an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of services to be provided.

What should be included in the Itinerary? Here are the instructions from USCIS.

On Feb. 22, 2018, USCIS issued further guidance titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (PDF, 119 KB).” The 2018 policy memorandum is intended to be read together with the 2010 policy memorandum and as a complement to that interpretive policy.

Here is the section that talks about what should be in the Itinerary details of an H1B Visa employer working at third-party work sites.

Why would some Employer submit an H1B Visa application to an employee who is working at Third-Party work site or as a consultant without an Itinerary, when USCIS is expecting that to be part of the H1B Visa petition?

#8 AC21 and 6-Year Limit

The petitioner did not establish that the beneficiary was eligible for AC21 benefits or was otherwise eligible for an H-1B extension as it appeared that H-1B had hit the six-year limit.

What is AC21?

Here’s the short but an effective description from Wikipedia about AC21

The American Competitiveness in the 21st Century Act (AC21) was an act passed by the government of the United States in October 2000, pertaining to immigration to the United States. The focus of AC21 was to change rules related to portability and caps for the H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs.

Here’s the section in the Form I-129 that would result in this H1B RFE.

And here’s is a screenshot from a USCIS Denial Notice specific to AC21 and 6-year limit.

#7 – H1B Visa LCA Corresponds to Petition

The petitioner did not establish that they obtained a properly certified Labor Condition Application (LCA) and that this LCA properly corresponds to the proffered position and terms of the petition.

Here’s is a H1B Visa Denial Notice due to LCA and Wage Level 1.

Here are additional details on USCIS ensures LCA corresponds with the petition

#6 Availability of Work (In-House Work Cases)

The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

Here’s an H1B Visa RFE Response and Denial Notice description about In-House Projects.

So, what’ the deal with In-House Projects and Why USCIS is issuing RFE?

First, look at this direct message from an H4 Visa holder.

I’m sure someone looking to apply for H1B Visa through a consulting company would have run into similar issues.

In the past, H4 Visa holders would have applied for H1B Visa through consulting companies with In-House projects. And received H1B Visa approvals.

But, what has changed? Let’s head to Murthy.com for an explanation.

#5 Maintenance of Status

The petitioner did not establish that the beneficiary properly maintained their current status. This category is reflective of many different reasons that status may not have been maintained.

From what I have seen this H1B Visa RFE – Maintenance of Status, for the most part, comes from F1 Visa to H1B visa.

Specifically from students who are using Day 1 CPT or have used more than 12 months of practical training.

#4  Beneficiary Qualification

The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation per 8 CFR 214.2(h)(4)(iii)(C).

I think this RFE would be related to the Specialty Occupation RFE to some extent. Because the Beneficiary qualification is what that would prove that H1B Visa applicant can perform that duties and job requirements. Right?

#3  Availability of Work (Off-Site Work Cases) H1B Visa RFE

The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

Sound straight forward. USCIS is requesting if there will be enough work. And this would be an issue typically for consulting companies that place workers at work sites.

Because they have to prove there will be sufficient work at the Client site for 3 years period. If the End Client contract is for say 10 months and LCA is for 3 years. Then this RFE could be issued. That would be my guess. Do you agree?

Here is the Page one of this H1B Visa Denial Notice and see the second-page extract as well.

Here is the second-page extract from for the above RFE.

Read the underlined sentence. USCIS is asking for the SWO Contract for the duration of the period H1B Visa was requested and they say the documentation was given for the prior 2 year period.

#2 –  Employer-Employee Relationship

The petitioner did not establish that they had a valid employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.

You probably know this Employer-Employee Relationship from STEM OPT and H1B Visa, especially if you are working as a contractor. 

Someone from your employer should be supervising you at the client site. The client should not be supervising you or training you for STEM OPT.

Why is a huge deal?

If you are the only employee of your company placed at the Client site, then how could someone form your employer supervise you. That is what USCIS is requesting with this RFE – Employer-Employee Relationship.

Now, add multiple vendors in-between!

#1 –  Specialty Occupation

The petitioner did not establish that the position qualifies as a specialty occupation as defined in section 214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii).

Alright. You have mad it till the Number 1 Reason for H1B Visa RFE – The Specialty Occupation.

So, how can you avoid this Specialty Occupation RFE?

I personally think you an employee should drive this process to ensure you have given your employer the complexities of the job you are performing and how it relates to your degree and skills.

If you are working at the third part site as a consultant, chances of your employer being aware of all your day to day tasks, duties, and complexities of the project are less likely. Right?

So, I believe it’s your job to ensure and give them more than what you have been asked.

Top 10 H1B Visa RFE’s

Here is a quick rundown of top 10 reasons for a Request for Evidence from USCIS for H1B Visa petitions.

1. Specialty Occupation
2. Employer-Employee Relationship
3. Availability of Work (Off-Site Work Cases)
4. Beneficiary Qualification
5. Maintenance of Status
6. Availability of Work (In-House Work Cases)
7. LCA Corresponds to Petition
8. AC 21 and 6-Year Limit
9. Itinerary
10. Filing Fee

Summary: H1B Visa RFE’s

• Some RFE’s can occur due to Human Error
• Majority of H1B applications are approved after responding to RFE’s
• Still, 38% of applications are also denied after response to H1B Visa RFE’s
• Typically denial of H1B Visa petitions could mean a loss of status in the USA for some applicants
• It’s all the more important to wok with an experienced Immigration Attorney to handle your H1B Visa petitions.

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1. H1B Visa 2020 Lottery Probability and Approval Chances
2. H1B Visa 2020 Cap Count for Regular & Advanced Degree Applications
3. H1B Visa 2020 Premium Processing Available in Two Phases