H-1B: RFE Data and Reasons, A Must See

If you've followed the drama encircling H-1Bs, you would know that Request For Evidences (“RFEs”) have substantially increased in the past few months, effectively becoming a wall for highly skilled immigration. Below are extracts from a document provided by USCIS charting the trend of RFEs for the past 4 years. According to the data, the number of RFEs issued has steadily risen over the past few years. From Q1 of 2015 till Q1 of 2019, a significant upward movement of RFEs issued is evident.

The following chart shows that along with the increase in H-1B RFEs, there has been an approximately 20% decrease in the number of H-1B petitions approved after being issued an RFE. It is important to note that the odds of receiving an H-1B denial are much greater if appropriate documentation is not provided. The documentation must address USCIS’s requests.

 

The following chart shows H-1B approvals for the top 30 employers with the most initial and continuing approvals for FY2018. You may be surprised to find some of the names on this list received any denials at all! For example, Cognizant received thousands of denials! Take a look at some of these astounding figures. Companies such as Amazon, Apple, Google and the like have received multiple denials. These are large-cap companies that either have in-house specialty occupation work or strength to leverage their size and capabilities in obtaining the necessary documentation to address RFEs. They have the financial resources to hire expert evaluators to establish the job position is a specialty occupation and also to hire top-notch/competent attorneys to represent them; yet they too are facing denials!

Top 10 Reasons Why USCIS Issued RFEs (According to USCIS!)

According to a recent document published by USCIS, entitled "Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018", (LINK) the following are the top 10 reasons in order from most to least common reasons for why USCIS may issue an RFE:

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.

4. Beneficiary Qualifications
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.

9. Itinerary
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.

10. Fees
The petitioner did not establish that they paid all required H-1B filing fees.

RAVAL, Sachin Ramesh

Sachin Raval Esq.