USCIS makes an inquiry called a request for evidence, or RFE, when they require additional evidence to make a decision on a H1B case. You will receive an RFE in the mail or can check online for an outstanding RFE by using the case status tool. The USCIS must have proof of a valid employer-employee relationship. An RFE can be for information about either the beneficiary or the petitioner, or both.
After receiving an RFE, you have up to 90 days to submit documents proving your case. Be sure that you answer all inquiries completely and thoroughly. If not, your case could be delayed even further, or you may inadvertently submit information that could jeopardize the outcome of your case. USCIS has the ability to be subjective therefore, it is not recommended to respond to an RFE without legal guidance.
Validation Instrument for Business Enterprise (VIBE)
The Validation Instrument for Business Enterprise, shortened to VIBE, is a tool used by the USCIS to confirm information about petitioning employers using available information. If there has been a recent address change, for instance, there may be a discrepancy between the H1B petition and the information obtained from VIBE, which could cause you to receive a RFE asking for information such as a lease agreement, recent financial statements or wage reports, or the petitioning employer’s Tax ID number.
In order to be granted an H1B visa, an employee must be qualified to work in a “specialty occupation.” Typically, a specialty occupation requires a bachelor’s degree at a minimum, and the job may require a degree. There are other requirements that may apply. The adjudicating officer must use his or her own judgment to approve or disapprove a specialty occupation. In order to make a judgment, the adjudicating officer may wish to see a detailed job description of the specialty occupation, the work history of the beneficiary, common practices in the industry, or a proposed salary, among other paperwork he or she could request. Review our page, H-1B Visa Status and Requirements for full information on specialty occupations.
Sometimes, a petitioner may be a business hiring a foreign worker whose job skills that are not typically associated with the petitioner’s field of business. Typically, the petitioner in this case would be a small business. An example of this potential challenge would be a petition for an H1B visa for a financial planner who will work for a construction business. The USCIS may suspect that the beneficiary will not be placed in a specialty occupation but rather in a position that requires less of his or her skills, and that the beneficiary will find other work after arriving in the U.S. If this happens, the petitioner must show that the beneficiary will be working in a specialty occupation.
Potential Problems with Beneficiaries’ Degrees
Sometimes, the beneficiary will possess a bachelor’s degree in a different field of study than the proposed occupation, leading to a RFE. When this happens, the petitioner must show how the beneficiary’s degree is related to the position. Another potential problem can occur if the beneficiary does not possess a bachelor’s degree in the United States, or may not even have a bachelor’s degree at all, because he or she attended college in a different country. To satisfy the RFE, he or she must submit documentation showing a foreign degree equivalent to a bachelor’s degree from the United States in his or her field. Alternately, a beneficiary must sometimes show college evaluations or letters from previous employers to document work experience for a RFE.
Employer-Employee Relationship Questions
In order for an H1B petition to be approved, there must be proof of an existing employer-employee relationship. If the beneficiary will be working off-site, this relationship can be difficult for the USCIS to determine without more information, and an RFE may request information to establish the employer’s control and supervision of the employee. The employee must also prove that the specialty occupation can be performed off-site at the particular job location and may be asked to show the chain of command for the employer’s organization.
Extensions and Changes of Status Requests
A worker must show proof that he or she has maintained status as an employee working in a specialty occupation by showing pay statements if he or she wishes to receive an extension for an H1B or change his or her immigration status.
Important Details to Consider
As previously state, it is unwise to move forward with an RFE response without legal assistance. However, you should always keep the following considerations in mind when you are answering an RFE:
- Read everything fully. If there are any words or phrases you do not understand because of the legal jargon, consult with your immigration attorney for clarification.
- Do not panic or make rash decisions. Instead, use all available resources from the USCIS to learn more about your particular case.
- Get it right the first time. Answer every question fully and do not submit a notice that has only partially been answered. You will not usually receive a second request for information if you have missed anything.
- Double check that you have included all documents requested, and double check to make sure you wrote the correct mailing address on the envelope.
- Keep the deadline in mind and be sure to submit your response before the deadline passes.
Consider Professional Legal Assistance
If you or an employee has received a Request for Evidence (RFE), KPPB Law is here to help. Our attorneys have extensive experience crafting RFE responses to USCIS. To learn more about how we can help you, call our office or, send us a description of your case online. Entrust your case to us so that we can help secure the best results possible for your case.