The immigration process involves many steps and forms. From electronic registration to a full H-1B cap petition, there are many aspects that companies need to stay on top of.
One such aspect of the immigration process centers around requests for evidence, or RFEs.
We sat down with Frank J. Fogelbach, a Supervising Attorney at Corporate Immigration Partners, for a primer on RFEs, including what they are, recent trends, types of RFEs and practice pointers for how to try to avoid them.
What is a Request for Evidence?
A U.S. Citizenship and Immigration Services (USCIS) request for evidence (RFE) informs petitioners that there wasn't enough information provided, or that USCIS needs more clarification on the Form I-129, Petition for Nonimmigrant Worker.
Employers must send the requested information to USCIS. Failure to do so will likely result in a denial.
USCIS can issue RFEs for all petition types.
USCIS will consider applicant responses received within 60 calendar days after the due date posted on an applicable notice or request before it acts. However, this flexibility is only applicable assuming the notice or request was issued by USCIS between March 1, 2020, and July 25, 2022, inclusive. A list of eligible documents is posted in our original story, available here.
RFEs and Recent Trends
USCIS regularly releases data and immigration statistics throughout the course of the year, and this includes RFE data. The general public can visit USCIS' website and view historical RFE data that dates to Fiscal Year (FY) 2017.
From a high level, RFE trends tend to correlate depending on the executive branch. USCIS data indicates that the completions with RFE percentage in FY 2017 was 21.4%. For FY 2018, the RFE rate increased to 38% and then 40.2% in FY 2019.
When looking at the data for FY 2021, RFE rates for H-1B petitions gradually dropped from 21.1% in January 2021 to 12.1% in September 2021. In all, the RFE rate for FY 2021 was 16.2%, according to publicly available data from USCIS.
What are the Chances of H-1B Approval After RFE?
USCIS also provides data on approval percentage after an RFE. According to USCIS, the "approved with RFE" percentage was 86.5% in FY 2021. This was an increase from 73.4% in FY 2020.
Can an H-1B Petition be Denied Without RFE?
Yes, USCIS can deny an H-1B petition without an RFE.
When looking at USCIS data, the agency received 398,277 petitions in FY 2021. Of that, the agency initially denied 11,237 H-1B petitions.
What are the Risks of RFEs?
The risks of USCIS issuing an RFE vary, and they are 100% case specific. Sometimes an RFE is issued because an employee may have a degree in a field that USCIS considers to be unrelated to what is normally expected for the occupation.
Sometimes employees rely on foreign degree equivalency education evaluations that use education and experience to arrive at a particular U.S. degree equivalency. There are specific factors that must be satisfied to rely on "combination" evaluations and USCIS tends to scrutinize "combination" evaluations more strictly.
Other factors that can result in an RFE include employee placement at third-party contractors; the sponsor's ability to pay the required wage; and/or whether the employee candidate has a criminal record.
Given that risks of RFE are case-specific, please consult with your immigration counsel to assess risks based on particular and unique circumstances.
Different Types of H-1B RFEs
Over the last few years, USCIS has provided some information on the most common types of H-1B RFEs. According to them, the most common types of H-1B RFEs are:
- Specialty Occupation
- Employer-Employee Relationship
- Beneficiary Qualifications
- Maintenance of Status
For more information on these types of RFEs and how to respond to an RFE for an H-1B petition, view the embedded webinar recording.
Practice Pointers to Steer Clear of RFEs
Unclear or inaccurate information on an H-1B petition can prompt an RFE. As such, it's important for HR teams to establish clear processes to prepare H-1B petitions.
This process should ensure all internal stakeholders, including employees and managers, are aware of their responsibilities and timelines. Managers should play a key role in providing detailed and accurate job descriptions to immigration counsel.
Document collection and storage is also a strategy teams can implement to better access important information. For example, leveraging immigration technology or HRIS platforms can allow HR teams to locate detailed records for foreign national employees, documents showing maintenance of lawful nonimmigrant status and relevant company documents.
Establishing a clear process for preparing H-1B petitions should also include a company's immigration counsel. When in doubt, HR teams should lean on their immigration counsel for questions and additional information to help strengthen an H-1B petition.
Finally, HR teams should ultimately be prepared to respond to an RFE. USCIS can be unpredictable with issuing RFEs. By being ready to respond, HR teams will help ensure they're able to gather the information required to provide a timely response to USCIS.
RFE's are part of the immigration process and sometimes there is little that can be done to avoid them. That said, there are certain known RFE triggers in the H-1B context that are worth mentioning to HR professionals, including:
- Whether the particular role is a role that USCIS considers to require the minimum of a bachelor's degree.
- Whether the employee has a degree in a discipline related to the occupation.
- Whether an employee is relying on a single-source degree, or a degree equivalency based on a combination of education and experience.
- Whether the employer has the ability to pay the required wage for the employee.
- Whether the employee has particular circumstances in their past, such as arrests, convictions or prior denials of immigration benefits.
Finally, it is also worth mentioning that immigration is a political football. It often depends on the administration in charge to set the tone as to how easy or difficult it is for particular beneficiaries to obtain immigration benefits.
It's important for HR teams to develop strategies to keep their house in order when it comes to their immigration program and take steps to ensure details in petitions are accurate to steer clear of RFEs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.