As the FY 2021 H-1B Visa lottery approaches, get up to speed with common issues facing H-1B applicants.
Between receiving the filing receipt and petition approval, many employers will receive a Request for Evidence (“RFE”) from USCIS because the evidence submitted by the employer is insufficient to establish eligibility for employee’s H-1B status. This article will generally outline the most common requests from USCIS on H-1B petitions, and what kind of evidence is helpful to successfully respond to the request to allow adjudicators from USCIS to approve the H-1B petition. By getting ahead of these issues, you can help ensure a smoother visa process ahead of next year’s visa lottery.
Validation Instrument for Business Enterprise (VIBE) type of request for evidence
The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’ adjudications of certain employment-based immigration petitions and applications. VIBE uses commercially available data from an independent information provider (IIP) to validate basic information about companies or organizations petitioning to employ certain foreign nationals and to validate the basic information about the companies or organizations. USCIS may send to some petitioners or applicants an RFE or NOID that references information VIBE has received from the IIP. Petitioners or applicants MUST respond to these RFEs or NOIDs; failure to respond may result in the denial of the petition or application.
When reviewing employment-based petitions or applications, USCIS must rely on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification or by the applicant to confirm a bona fide job offer. When the paperwork does not sufficiently document the evidence required under the law, USCIS must issue a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition or application. Therefore, to avoid a VIBE RFE, H1-b petitioning employer, especially start-up companies, should update their information on VIBE database.
Update Company’s or Organization’s Information in VIBE
USCIS does not require companies and organizations to create or update records with D&B; however, you may choose to create, verify, or correct your company or organization’s information with D&B.
If your entity is a U.S.-based privately held company or organization and you would like to create, verify or correct its D&B record, you may contact D&B directly online through iUpdate for U.S. government customers. Contacting D&B through this link will allow you to create, update and view basic elements of your company’s or organization’s D&B report without being subjected to direct marketing from D&B. It is only available for U.S.-based privately held companies and other U.S. government customers.
Request to show that the offered H1-b position is a Specialty Occupation.
This type of RFE is probably the most common and also the most difficult to respond to the satisfaction of the USCIS officer. RFE to establish Specialty Occupation asks the employer to provide evidence that the job position offered to the H-1b applicant is one that requires the attainment of a college degree. This type of RFE could be avoided by choosing job positions that are classified by the Standard Occupational Classification (SOC) code as a high job zone. Job positions in lower Job Zone tend to be considered to not be Specialty Occupation for the purpose of H1-b petition. Responding to a Specialty Occupation RFE requires extensive discussion with the employer and lawyering skills. We highly recommend that the employer seek assistance from an immigration attorney before responding to a Specialty Occupation request for evidence.
Request to show that the petitioner needs the services of the beneficiary.
This type of RFE is common when the employer is a small or a start-up business with very few other employees. When small or start-up businesses with few employees petition their employee for H1-b, if the offered position is not carefully selected, USCIS may question whether the position is required based on the size of the operation. For example, when a small import company with 4 employees, three of them sales, petitions for a financial analyst, although the petition may be considered a Specialty Occupation, USCIS may request evidence that employer’s financial state requires the service of a financial analyst. This type of RFE gives the USCIS officer wide discretion to deny an H1-b petition even though the employer submits sufficient evidence to prove that the company requires the services of the H1-b employe despite its size.
Request to show that the petitioner has the requisite employer-employee relationship
This type of Request for Evidence has been surfacing in the last 8 to 10 years because a majority of the H1-b petitions are filed by IT companies that hire many Indian computer programmers and engineers but send them out to the work site of the clients or vendors who purchase their services. This type of loan-out agreements where the H1-b employee goes to work in another location that is probably not managed by the H1-b petitioner creates the issue of employer and employee relationship. Employer and employee relationship is required for the approval of H1-b petition, and unless the petitioner is able to exercise strong control and supervision of the H-1b employee who works off-site, it is often difficult to respond to a request for evidence of employer-employee relationship. Employment agency employers who send their H-1b employees to work off-site should develop comprehensive employee handbook and protocols that contains information about how the H-1b employee will be required to report to their employer about their work, including schedules and progress report. Employer should also document performance review or audits and be ready to produce these evidence in response to the RFE from USCIS.
Request to show that the beneficiary (H1-b employee) has maintained legal status in the United States.
This type of RFE is perhaps the easiest to respond because the beneficiary either has been maintaining valid status, so the answer is often fairly conclusive. The employee should prepare a copy of all of the Form I-20s ever issued in the United States if the employee has been in a F-1 student status. All of the I-94s and previous paycheck stubs are going to be relevant to this inquiry and should be prepared.