Reminders for Avoiding RFEs for H-1B CAP/Lottery Cases for FY2021

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As of April 1, 2020, USCIS has begun once again accepting H-1B Cap subject lottery cases for the FY2021. As highlighted in previous alerts, we again expect a significantly high rate of USCIS Request For Evidence (RFE) demand for H-1B visas this coming quarter as a result of heightened and restrictive immigration policies of this administration. Furthermore, the Covid-19 mandates have changed the way of conducting business, increasing layoffs for those on OPT temporary work permits, and likely caused many H-1B applicants to lose their once-in-a-lifetime opportunity for an H-1B. It remains to be seen how the shelter-in mandates will ultimately affect the data for FY2021 H-1B Cap cases.

While we do hope that all selected cases will be approved, the USCIS recently shared the latest data, stating that only 85% of H-1B cases (filed up to March 31, 2020) were approved, 41.7% received a Request For Evidence (RFE), and of those, only 67.6% of RFE’s submitted were approved. There is a stark difference in the rate approvals for cases without an RFE versus those with an RFE. The RFE could be the death knell to someone’s H-1B hopes and dreams. The USCIS will be looking for the usual RFE suspects, such as those listed below:

  • 1. Employer Information being insufficient: USCIS may wish to verify the operations of the business, requesting business licenses, tax returns, lease agreements, square footage and use of the office space, photos of the production or warehouse space, photos of the actual business site.
  • 2. Specialty Occupation: a specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and that requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. This is a 4 prong-response:
  1. a) Degree is normally minimum requirement
  2. b) Degree is common to the industry
  3. c) Position is so complex or unique that it can only be performed by an individual with a Bachelor’s degree or higher in a specific specialty.
  4. d) Employer normally requires degree
  1. 3. The Specific Duties of the Offered Position and Nature of Business Operations being too vague, generalized and abstract, and does not relate substantial details to the work performed.
  1. 4. Employer-Employee Relationship: did the petitioner establish that they had a valid employer-employer relationship with the beneficiary, by having the right to control the beneficiary’s work, including the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.
  1. 5. Availability of Off-site Work: for those employees who will be working off-site, did the petitioner establish that they have specific and non-speculative qualifying work in a specialty occupation.
  1. 6. Beneficiary is Qualified: employee attained a US Bachelor’s degree (or equivalent), and if using a foreign degree, it was evaluated by a credentialed evaluation company such as Silvergate or Trustforte (companies we have used in the past).
  1. 7. Maintenance of Status: did the employee properly maintain their current status. The prime example is whether a student might not have maintained OPT due to being unemployed for over 90 days or where the H-4 beneficiary lost H status when the primary H-1b holder had been laid off and it already passed the 60 days of grace period.
  1. 8. Availability of work (in-house): there must be sufficient specialty occupation work that is immediately available at the work location for the entire requested H-1B validity period.
  1. 9. Labor Condition Application is certified, and it must correspond to the proffered position and terms of the petitioner (e.g. prevailing wage, start and end dates, worksites match LCA).
  1. 10. Itinerary for multiple work locations: is there an itinerary in cases for 3rd party worksites or multiple projects.
  1. 11. Fees: $460, $500, $1500 or $750 for smaller companies (seek attorney advice to clarify).
  1. 12. Filing with the correct USCIS service center for regular cap and US masters cap cases at the California Service Center or Vermont Service Center.

The above reminder tips should address the most common reasons for the RFE. Feel free to contact an MLG immigration professional with any questions about H-1B filings at info@meyerlawgroup.us.

Paul Chen

Partner