Key Takeaways:
- Second RFE occurs due to unclear specialty occupation, educational requirements, or wage level appropriateness in an H-1B petition.
- Prove employer-employee relationship, work availability, beneficiary qualifications, and maintain status to address USCIS concerns.
- RFE requests more info, while a NOID indicates likely denial without compelling additional evidence; both require timely response.
Common Reasons for a Second Request for Evidence (RFE) for H-1B
Receiving a second Request for Evidence (RFE) for an H-1B petition from USCIS can be concerning, but it’s not necessarily a cause for alarm. It simply means that additional information is needed to process your petition. Below, we break down common reasons why USCIS may issue a second RFE and what you can do to address them effectively.
Why Does USCIS Question the Specialty Occupation?
Complexity of the Job
One frequent reason for a second RFE is the complexity of the job position. USCIS might question whether the role qualifies as a specialty occupation, which typically requires that the job position needs a bachelor’s degree or higher in a specific field. For instance, a vague job description like “Computer Systems Analyst” might trigger additional scrutiny.
Educational Requirements
Moreover, you need to prove that the job requires a particular degree in a tightly related field and that the beneficiary possesses that degree. When these criteria aren’t crystal clear, USCIS might request more evidence.
How Do Wage Levels Affect Your Petition?
Appropriate Wage Level
USCIS may scrutinize whether your Labor Condition Application (LCA) accurately reflects the wage level appropriate for the job. For example, if you designate a “Wage Level I” but the job seems to require more than entry-level skills, you’ll need to justify this choice.
Job Complexity
Ensure that the selected wage level aligns with the complexity of the job duties. This includes providing detailed job descriptions and evidence supporting your wage level selection.
How to Prove Employer-Employee Relationship?
Control Over Employee
USCIS often needs proof that an employer-employee relationship exists, especially if the employee will work offsite. Evidence might include documentation showing control over hiring, firing, and supervision.
How Can You Demonstrate the Availability of Work?
Duration and Specificity of Assignments
If the work involves third-party placements, you need to present proof that the beneficiary has specific, non-speculative assignments for the entire period requested. Examples include client letters, contracts, and detailed statements of work.
In-House Projects
For in-house roles, evidence should highlight ongoing projects and indicate substantial work availability for the entire duration of the H-1B petition.
What Constitutes Beneficiary Qualifications?
Educational and Professional Credentials
Another key area of inquiry might be whether the beneficiary meets the job qualifications. This includes verifying educational degrees and relevant work experience. Make sure to provide authenticated copies of degrees, certifications, and work history.
What About Maintenance of Status?
Current Status Documentation
USCIS could ask for documents proving that the beneficiary has maintained their current status. This may involve providing pay statements, employment records, or, for F-1 students, evidence of class attendance and academic performance.
Are There Issues with the Labor Condition Application (LCA)?
Proper Certification
Ensure that you have a properly certified LCA that matches the terms and conditions of your petition. Any discrepancies can result in an RFE.
Do You Need a Detailed Job Itinerary?
USCIS might request a detailed job itinerary if the position involves multiple locations or relocation. This itinerary should outline job responsibilities, durations at each site, and requirements.
What If You’ve Reached the Six-Year Limit?
Eligibility for Extension
If the beneficiary approaches the six-year limit on H-1B status, provide evidence that qualifies them for an extension under the American Competitiveness in the Twenty-First Century Act (AC21).
Is a Second RFE a Notice of Intent to Deny (NOID)?
What is an RFE (Request for Evidence)?
An RFE is issued when USCIS needs more information to decide on a petition. Here’s what you should know:
- Purpose: It’s a request for additional documentation.
- Response Time: You typically have up to 90 days to respond.
- Implication: Receiving an RFE doesn’t mean your petition will be denied; it just means more information is required.
What is a NOID (Notice of Intent to Deny)?
A NOID indicates that USCIS believes the petition is likely to be denied based on the provided information. This is more severe than an RFE and you should be prepared to present compelling evidence to overturn this determination. Key points include:
- Purpose: It signifies serious concerns about eligibility.
- Response Time: Usually, you get up to 30 days to respond.
- Implication: A NOID suggests that, without strong additional evidence, the petition will be denied.
In summary, while a second RFE signifies that USCIS has additional questions, it doesn’t equate to a certain denial like a NOID might. Addressing the concerns with comprehensive evidence is essential for a favorable outcome.
Useful Resources for H-1B Petitioners
For further details on RFEs and NOIDs, refer to the USCIS official page.
Updated by VisaVerge.com, we hope this guide clarifies why USCIS might issue a second RFE for an H-1B petition and how to effectively respond to it. Ensure that all documentation is thorough and meets the specified requirements to increase the chances of a successful H-1B petition approval.
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Glossary of Immigration Terms
- RFE (Request for Evidence): A formal notice issued by USCIS asking for additional documentation or information to make a decision on an immigration petition. It is typically issued when the initial submission lacks enough evidence to prove eligibility.
- USCIS (U.S. Citizenship and Immigration Services): The federal agency responsible for overseeing lawful immigration to the United States. They process petitions and applications for citizenship, immigration benefits, and work visas like the H-1B.
- Specialty Occupation: A job position that requires theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or higher in a specific field as a minimum for entry.
- Labor Condition Application (LCA): A form filed with the U.S. Department of Labor that an employer must submit when hiring an H-1B worker, ensuring that the job will not adversely affect the wages and working conditions of U.S. workers.
- NOID (Notice of Intent to Deny): A formal notice from USCIS indicating that the provided evidence does not adequately prove eligibility for the desired immigration benefit, suggesting that the petition is likely to be denied unless compelling, additional evidence is presented.
This Article In A Nutshell:
Common second RFE reasons for H-1B petitions include clarifications on specialty occupation criteria, educational qualifications, wage levels, employer-employee relationships, and availability of work. Address these issues promptly and thoroughly with proper documentation to enhance your petition’s approval chances.
— By VisaVerge.com
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