Increased Scrutiny of H1B Visa Applicants

An Increase in ‘Request for Evidence’ Delaying H1B Visa Processing

Posted on September 12, 2017

H1B visa applicants are seeing a spike in requests for evidence (RFE) in addition to their original paperwork from US authorities lately. While it doesn’t mean a rejection of the application, it implies that there is need for further documentation to prove the eligibility of the visa application.  These range from salary earned under this visa position to whether the applicant fits the requirement of having a specialty occupation or exceptional talent.

These are some of the inquiries that are the recent causes of delay when seeking a work visa to travel to the United States. Be it H1B or L1 work related visas, any route into the US is now being scrutinized with a fine-toothed comb. The primary reason for this is the extreme vetting put in place to check for visa fraud as well as reduce the number of jobs being outsourced rather than being offered to local citizens within the US. One way of slowing down the process is the recently instituted mandatory face-to-face interviews for each visa category. This was waived in the past and dealt with on a case-by-case basis. However, in-person interviews will be made mandatory for each visa applicant in order to get an opportunity to examine and personally ask detailed questions.

Additionally, immigration attorneys are now being inundated with an increase in the number of ‘Requests for Evidence’ (RFEs). These are issued by the United States Citizenship and Immigration Services (USCIS) asking for additional supporting documentation to justify the basis of the application. There has been a steep hike of nearly 55% in RFEs that question eligibility of visa requests especially pertaining to petitions filed on or about April 2017 for H-1B and L1 visas. Out of the 316.45K petitions received by USCIS, 85.27K applicants were asked to furnish evidence, the largest number of requests in the past nine years.

These RFEs particularly focus on two questions –

Applicant’s Specialty Occupation

The criteria for a H1B visa is that the applicant have a specialty occupation that requires theoretical and practical application of a body of specialized knowledge. Applicants are being questioned in depth regarding the veracity of their knowledge and justify why they are more eligible than a US citizen.

Applicable Level Wages

A frequent inquiry is made related to the wages being given to a H1B visa holder. Level-1 wage-earners are not eligible for a H1B visa since it is given to entry-level jobs that do not necessarily require a worker from a foreign entity to come in to perform a task that can be done locally in the US. Moreover, it indicates a non-professional position that does not require a specific college degree

A recent order by the Trump administration had increased the annual qualifying salary to $130,000 which is not the current Level-1 salary. This is currently befitting a Level-4 category which calls for a more technical and leadership role.

Apart from these, there are several other reasons the applicant may receive a RFE. Among these the more frequent ones are –

  • Incomplete Records
  • Ineligibility, and therefore needs additional information to justify like details of employer, designation, tax filings, etc.
  • Information asking for agent details, i.e. foreign person/institution filing visa on behalf of applicant
  • Evidence of requisite fees paid
  • Details of biometrics, if needed.

Therefore, the RFEs delaying the process revolves around the argument between the complexity of the applicant’s role and the commensurate low wages offered for that position. Path2USA talks about how to respond to a request for evidence. Applicants need to be prepared to justify and support both these queries if they want to avoid delays in processing their work visas to the United States.

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