H-1B nonimmigrant visa is for individuals who will perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense cooperative research and development project, or services as a fashion model of distinguished merit or ability. For FY 2023, the Office of Homeland Security Statistics reports that 755,020 people were admitted to the United States in H-1B status.[1]
H-1B Requests for Evidence (RFEs) are issued by USCIS when they need more information to make a decision on a petition. Common reasons for H-1B RFEs include:
Specialty Occupation: USCIS often questions whether the job qualifies as a “specialty occupation.” To meet this requirement, the position needs to require at least a bachelor’s degree or higher in a specific field. Therefore, providing a detailed job description that clearly indicates the level of specialization will help the adjudicating officer to match the position to a specialty occupation according to the applicable resources.
Beneficiary’s Qualifications: If there are questions about the employee’s degree or if their qualifications don’t clearly align with the specialty occupation, USCIS may ask for further documentation. Therefore, providing the employee’s degree certificates, transcripts, professional certifications, experience letters, and U.S. equivalency evaluation is essential.
Availability of Work and Employer-Employee Relationship: Previously, USCIS often asked for the evidence to prove that petitioner maintains the right to control the employee’s work and employment terms. This type of RFEs normally requested detailed contracts, schedules, itinerary, or other evidence showing the employer retains control over the work being performed, even when it occurs at a client site. However, following the decision of ITSERVE Alliance, Inc. v. Cissna, USCIS has agreed in a settlement to rescind the 2018 third-party worksites memorandum (PM-602-0157) and removed the requirement that the petitioning employer provide contracts or itinerary covering the entire requested period of stay.
LCA Inconsistencies and Wage Level: If there are discrepancies between the information in the Labor Condition Application (LCA) and the H-1B petition (for example: job title, worksite locations, exemption, or salary), USCIS may issue an RFE to clarify. Therefore, the LCA should accurately reflect the job and other conditions under which the employee will work. The wage level chosen on the LCA should also align with the duties and requirements of the position. If the wage level appears too low relative to the job requirements or industry standards, USCIS may question whether the position meets specialty occupation standards.
Maintenance of Status: For H-1B change or extend of status petitions, the employer should provide evidence that the employee has maintained their current immigration status up to the date of the H-1B filing. Therefore, it is crucial to include the paystubs or other immigration documents.
[1] https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet
Conclusion
At System Soft Technologies, we understand the importance of visas for workers in the IT industry. That’s why we offer strong immigration support to streamline the hiring process and guide our employees throughout the complex immigration compliance. Our team is committed to providing resources that can help our highly skilled employees maintain their lawful immigration status and continue to pursue their professional goals and contribute to the U.S. society.
About the Author: Tzu-Hui (Olivia) Chien
About the Author
Tzu-Hui (Olivia) Chien is the Corporate Counsel – Immigration at System Soft Technologies. She is a resourceful legal professional who proactively offers strategic planning advice to ensure the company’s immigration compliance. She also provides legal guidance and risk mitigation relating to the immigration matters of System Soft Technologies’ international talents.