Top 10 Things That Results in an RFE On an H-1B Petition
U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.
During H-1B petition adjudication, USCIS officers issues written notices in the form of a Request For Evidence (RFE) to request missing initial or additional evidence from petitioners who filed H-1B petition on behalf of the foreign national beneficiary.
USCIS recently released a chart to the American Immigration Lawyer’s Association with a breakdown of why Requests for Evidence (RFEs) were issued for H-1B petitions. Employers and immigration practitioners should carefully review the below chart when submitting either an H-1B cap or cap-exempt petition to USCIS so that RFE can be avoided.
|#||Reason||Description of Reason|
|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).|
|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.|
|3.||Availability of Work (Off-site)||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.|
|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).|
|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.|
|6.||Availability of Work (In-house)
|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.|
|7.||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.|
|8.||AC21 and Six 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.|
|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.|
|The petitioner did not establish that they paid all required H-1B filing fees.|