When the USCIS needs evidence to decide on an H-1B case, they will submit to you a request for evidence (RFE) in the mail or on an online portal that manages your H-1B case. In order to send an H-1B RFE, the USCIS must prove that there is a verified relationship between the employer and employee. An H-1B RFE can be intended for collecting information about either the H-1B beneficiary, his or petitioner employer, or both parties.
Upon receiving an RFE, there is a 90 day time limit to submit documentation that provides proof of an employer employee relationship. It is important to answer all questions carefully and thoroughly. Your case can be protracted further if you do not completely answer the questions or if you provide information that may cause your case to be rejected. It is also highly suggested that you do not respond to an RFE without speaking to an immigration attorney.
Validation Instrument for Business Enterprise (VIBE)
The Validation Instrument for Business Enterprise (VIBE) is a measure used by the USCIS to verify information about employers who petition on behalf of a potential H-1B visa employee. The VIBE uses employers’ information to confirm their legitimacy, making sure that all address changes, lease agreements, financial statements, wage reports, tax ID numbers, etc., are all up to date and able to be provided by the employer. If there are any discrepancies found between the information provided by the employer and the information that the VIBE obtains, it could delay or jeopardize the petitioning process.
An employee can only be given a position after a successful petition by their employer if they will be working in a “specialty occupation.” A bachelor’s degree is the minimum requirement, however most require an advanced degree such as a master’s degree or doctorate from an institution of higher learning. The officer adjudicating the case will use their own judgement in deciding whether or not the occupation being filled can be specified as a specialty occupation. To help in making their judgements, adjudicating officers may ask for a detailed job description of the specialty occupation, the prospective employee’s work history, industry knowledge, or other paperwork. Review our H-1B Visa Requirements page for more detailed information about specialty occupations.
Though specialty occupations account for the majority of accepted petitions, a petitioner may sometimes by an employer hiring a nonimmigrant worker to perform a job that isn’t necessarily related to the employer’s field. A particular case would be a petitioner that owns a small business. One example of this scenario is hiring an accountant to perform auditing for a small home additions company. However, the USCIS will likely monitor a case like this more closely. If the USCIS suspects that the employee is being placed in a position where they are not truly performing a specialty occupation that matches their advanced skill set, then it is the petitioner’s responsibility to show that the employee beneficiary is actually engaged in a specialty occupation.
Complications with Beneficiary Degrees
An H-1B RFE may also be issued if the beneficiary has a bachelor’s degree in a field different than the occupation they will be working in. If this occurs, the petitioner must show the USCIS how the beneficiary’s degree can prove useful to the position. A further problem may occur if the beneficiary obtained a bachelor’s degree at a university outside of the United States or may not even have the equivalent of one at all. To validate this degree, the beneficiary must submit records that show a foreign degree equivalent to a bachelor’s degree received in the United States in his or her specialty field. In addition, a beneficiary may also have to present evaluations and recommendations from former professors and employers to prove work experience for information that is recorded in an RFE.
Questions of Employer-Employee Relationships
An H-1B petition can only be approved if there is proof of a documented employer-employee relationship. If the beneficiary is an off-site employee, the USCIS may have a difficult time determining the relationship, and will then submit an H-1B RFE to gain better understanding of the employer’s supervision and authority over the employee. The employee must also document that their specialty occupation can be performed off site and that no restrictions inhibit their employer from holding an authority position over theirs.
Extensions and Changes of Status
If an employee wishes to be granted an extension of their status as an H-1B beneficiary or change his or her immigration status, they must provide proof that they are still employed in a specialty occupation. This can be proved by providing pay statements to the USCIS.
It is cautioned against responding to an H-1B RFE without consulting an immigration attorney’s guidance. However, when answering an RFE, it is important to follow some simple rules that will help you through the process:
- Read the entire document fully and to the best of your ability to comprehend what is being asked. If you are even slightly unsure as to what is being asked of you, do not hesitate to receive clarification by consulting with an immigration attorney
- Remain calm and do not answer questions incorrectly or make decisions out of fear or panic. Learn more about your case by referring to resources offered by the USCIS
- Do not submit a partially-answered H-1B RFE. If you miss reporting any information, you will rarely receive a second RFE, and it is very important that you fill out the information correctly
- Ensure that you have submitted all requested documentation and that the mailing addresses are correctly written on the envelope
- Ensure that you submit your responses by the stated deadline
H-1B RFE Assistance
Johnson & Masumi is here to help you with any assistance you need having received a Request For Evidence (RFE), whether you are an employer petitioner or potential employee. Our attorneys have extensive experience in guiding clients through the process to provide accurate and detailed responses to the USCIS. For more information about how we can help your case, call us at 703-506-1470 or contact us online.