As the FY 2020 culminates at the end of September and October starts the new fiscal year 2021, so does the season for Request For Evidence (RFE). Recent data issued by USCIS indicate that the RFE issue rates remain high for all nonimmigrant visa categories.

USCIS issues written notices in the form of a request for evidence (RFE) to request missing initial or additional evidence from applicants and/or petitioners when the USCIS requires more information in order to issue a final decision on the application for an immigration benefit.  

The increase in RFE issuance indicates that USCIS continues to scrutinize nonimmigrant visa petitions for accuracy and applicability of job descriptions, foreign workers’ qualifications to fit the specialty occupation, and wage criterion to fill such positions.

 While several entry restrictions were put in place this year against H1-B petitioners outside of the US and green card applicants trying to adjust their immigration status, the issuance of RFE is considered another stalling mechanism against the non-immigrant visa holders.

This heightened scrutiny and resultant RFEs for H1-B or L-1 visas have been for the following reasons:

1. Specialty Occupation

USCIS has continually tried to redefine what constitutes a ‘specialty occupation’. If the foreign worker doesn’t fulfill a job description of a specialty nature with specialized knowledge and skill set, he is issued an RFE. To avoid such an RFE, employers should provide documentation that links the exclusivity of the job to the skill level of the foreign worker. Follow this sample letter of job description to list duties and responsibilities to create such a document.

• Level II Wages

Today DHS has placed a proposal before the OMB suggesting an increase in wages from Level I to Level II claiming that this should be the minimum wage eligibility for all non-immigrant foreign workers. While the average prevailing wage is $83,619, the expected wage with the new proposal is $100,461. A worker getting any lower than this will receive an RFE.

• Academic Qualifications

A specialty occupation requires that the beneficiary has a minimum of a Bachelor’s degree if not a Master’s Degree from the USA. If the initial petition did not reflect the “highly skilled” H1-B beneficiary’s ability to perform the specialty occupation, he would be denied the visa. Alternately, extensive training and experience backed by licenses and credentials also supported stipulated qualifications.

• Employer-Employee Relationship 

If the employee is working at a third-party worksite, the sponsoring employer has to establish a legitimate employer-employee relationship. While the beneficiary will be involved in a project at a third-party site for the entire duration of the time petitioned, the employer will in control of the project. This can be shown by providing copies of contracts, managerial control of work during that phase and terms and conditions of the employment showing that the employer has all control of the H1-B beneficiary’s work.

• Task Itinerary

 This year, several RFEs were issued wherein the H1-B petition did not also have a detailed breakdown of all tasks, specific dates and the time duration it would take to perform them. If the job duties involved different locations then the itinerary of services was to provide the details of that as well. This established non-speculative employment.

As Q4 wraps up, and FY 2021 begins the first lookout will be for the end of the entry bans on December 31, 2020. While selected and approved H1-B can join work by October 1, 2020, many are yet to receive approvals from the RFEs issued this year. Stay tuned to this space for the latest updates.