U.S. Citizenship and Immigration Services (USCIS) has released a listing of its top ten reasons for issuing Requests for Evidence, or RFEs, to H-1B visa applicants. The number of RFEs that USCIS has issued over the past year has grown exponentially. In the first quarter of FY 2019 alone, USCIS issued RFEs to 60% of H-1B visa applicants, as compared to less than 30% in the same quarter of the previous fiscal year.
According to USCIS, the most common reason for issuing an RFE in response to a H-1B visa application was the failure of the employer to establish that the position for which the visa is sought qualifies as a specialty occupation. The employer must provide evidence that the job not only requires highly specialized knowledge, but also at least a bachelor’s degree, or its equivalent. Employers normally should provide USCIS with a detailed job description containing job duties and responsibilities, as well as the educational requirements. There must be a clear link between the job duties and the education necessary to carry out those job duties.
Furthermore, USCIS often will issue an RFE to employers who fail to provide adequate evidence that they have a valid employer-employee relationship with the visa beneficiary, or the foreign worker. If the employee will be placed at a third-party worksite, the employer must demonstrate that it will retain authority over the employee and the job duties that he or she is performing through the entirety of the work period. Typically, employers should have a signed employment contract that delineates the rights and responsibilities of all parties involved.
Another common reason for USCIS to issue an RFE to a H-1B visa applicant is an alleged failure to establish that the H-1B visa beneficiary who is to work at a third-party worksite will perform specific duties related to the specialty occupation during the requested period of employment. In other words, the employee must have specific assignments and contracts in place prior beginning work, not simply expect that the employee will perform work as it arises. These are just a few of the common justifications for USCIS issuing RFEs in response to H-1B visa petitions. At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.