H-1B Request For Evidence
To obtain H-1B status, a U.S. employer must submit an H-1B petition to the United States Citizenship and Immigration Services (USCIS). The purpose of the H-1B petition is to prove the H-1B employer has a legitimate opening in a specialty occupation and that the foreign national beneficiary has the qualifications to fill the position. If during H-1B processing the petition is found to lack the required initial evidence or the evidence submitted fails to establish eligibility, the USCIS may (1) deny the petition, (2) issue a Notice of Intent to Deny (NOID) or (3) issue a Request for Evidence (RFE). The USCIS adjudicators have discretion regarding whether to deny a petition for lack of evidence, but are encouraged to issue an RFE or NOID in lieu of an immediate denial.
An RFE is sent to the H-1B sponsor as a written request for information and is typically printed on blue paper. It will indicate the type of evidence, initial or additional, that the USCIS adjudicator needs and is intended to provide the H 1B sponsor with notice of the evidentiary deficiency and adequate time to respond. The USCIS can assign different time periods for responding to an RFE, but the maximum amount of time to respond cannot exceed 12 weeks. Moreover, extensions of time will not be granted and all information must be submitted in one filing.
It is recommended that the H-1B sponsor completely respond to every RFE question and include the original RFE notice in the response. The USCIS will grant the foreign national H-1B visa status if the RFE response sufficiently addresses the petition's initial evidentiary deficiencies.
The H-1B sponsor may also submit a partial response and request a decision based on the record, or withdraw the H 1B petition. If the H-1B sponsor does not respond by the required date, the USCIS can (1) deny the petition as abandoned, (2) deny the petition based on the available record, or (3) deny the petition for both reasons. A new H-1B petition can be filed, with new H-1B fees, if the H-1B employer withdraws the original petition or it is denied due to abandonment. However, the facts and circumstances surrounding the original petition will otherwise be considered material to the new H-1B petition.
Required Initial Evidence
The information and documentation requested in each H-1B RFE is based on the specific evidentiary deficiencies of the petition submitted. Frequently, the H-1B employer will receive an RFE based on their failure to include or establish the initial evidence required by the USCIS for H-1B approval. The initial evidence an H-1B petition should contain must prove the following to the USCIS:
- A Labor Condition Application has been filed and certified by the Department of Labor.
- The position offered to the foreign national is a specialty occupation.
- The foreign national has the degree required for the position.
- The foreign national holds any licenses or permits required for the occupation in the state in which the occupation will be performed.
- The terms of the H-1B job, including copies of any contracts or summaries of any oral agreements between the H-1B employer and foreign national.
The USCIS may desire additional information regarding the foreign national and/or the H 1B employer, including background and financial information about the employer, the foreign national's current immigration status, and information about any H-1B dependents. The USCIS will also issue an RFE if fraud or other illegalities are suspected.