Top 10 Reasons For H1-B Denials & RFEs – Which Ones To Expect This Year
The United States Citizenship and Immigration Services (USCIS) have received sufficient number of H1-B petitions for FY 2020 to conduct a lottery and issue foreign workers with a work visas under the regular cap category. However, as seen in the past couple of years these petitioners are also being scrutinized with a fine-toothed comb and consequently, receiving an aggressive amount of Request for Evidences (RFEs) to justify their petition and/or subsequent denials. Based on past trends, the following are the top 10 reasons for being issued a RFE or a straight-out denial of H1-B visa petition:
- Specialty Occupation: One of the most common reasons to receive a RFE or a denial was when USCIS could not firmly establish that the petitioned role was that of a specialty occupation. This meant that the job involved required highly specialized knowledge of the core task and was complex enough that needed a minimum of a Bachelor’s degree if not a Master’s. In order to mitigate such a RFE/denial, employers should provide documentation that links the exclusivity of the job to the skill level of the foreign worker. Follow the sample letter of job description to list duties and responsibilities to create such a document.
- Beneficiary’s Qualifications: Background or academic qualification was another main reason for USCIS issuing RFEs. If the initial petition did not justify the qualification of the H1-B beneficiary’s ability to perform the specialty occupation, he would be denied the visa. Given that H1-B is granted to highly skilled foreign workers, a bachelor’s degree in the said field of work is a minimum requirement and a Master’s degree increased your chance of getting selected. Alternately, extensive training and experience backed by licenses and credentials also supported stipulated qualifications.
- Third-Party Work-Site: It is important to establish that if the employee is working at a third-party worksite, he can prove that he will be involved in a current and continuous project in a specialized role for the entire duration of the time petitioned. The H1-B petition cannot be for an anticipated project at a future date. In order to establish this the employer can provide an itinerary of job duties that will outline his day-to-day tasks with the amount fo time devoted to each for the duration of his visa.
- Employer-Employee Relationship: Another reason that petitioners received denials was because they failed to establish a legitimate employer-employee relationship. 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.
- H1-B Extensions: H1-B visas are issued for a period of six years. Should his work require a H1-B extension beyond that period, he should have a pending labor certification or an approved I-140 which will grant him an additional three years. Else, this will beget a RFE.
- Maintenance of Status: If the beneficiary has a previous visa that is of a questionable nature wherein his status was not properly maintained, he could be outright denied. It is important not to overstay visas, have documentation supporting travel itineraries, and legitimate I-94s and I-797s coupled with employment verification letters.
- Working at Employer Location: Similar to working at third party site, it is important to establish the need to work at the employer’s primary worksite as well. This tells USCIS that this is a specialty occupation that cannot be performed remotely and need the worker to be present here.
- Task Itinerary: Last year, several RFEs were issued to petitioners who did not submit 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.
- Legitimate Labor Condition Application (LCA): If the H1-B position does not correspond the LCA in terms of job title and wage level, then this will warrant a RFE or even a denial in some cases. A detailed description of the skills, education and experience required to perform the job is required to avoid this.
- Fees: Lastly, one of the main reasons denials were issued was because the requisite H1-B filing fees was not submitted along with the petition. The fees vary according to size of the company, number of employees and the kind of H1-B filing, i.e. premium processing or not. USCIS offers a fee calculator to figure the right amount.