Receiving The Dreaded ‘Request For Evidence’ After Filing For An H-1B

By Attorneys Devin M. Connolly & Nancy E. Miller

Although the 2015 Fiscal Year (FY) began a few weeks ago (on October 1), the opening date for filing H-1B applications in order to work during FY 2015 was April 1.  Because of the fact that there are more applicants than there are H-1B visas, most H-1B petitions are filed on or immediately after April 1.  While many petitions have been approved, many others are still pending with the U.S. Citizenship and Immigration Service (USCIS).  Those petitioners may be the recipients of a ‘Request for Evidence’ (RFE) from the USCIS. 

An RFE is issued when a petition or application lacks required documentation or evidence, or when an officer needs additional documentation or evidence to determine whether an applicant is eligible for the requested benefit.  The requested evidence must be submitted by a stated deadline.  If the information is not provided, the application or petition will be denied.  Many RFEs have been issued recently addressing the issue of specialized knowledge.

Employers may file H-1B petitions for specialized knowledge professionals.  An approved petition permits foreign workers to begin employment in their specialty occupation on October 1 of that year.  There are only 65,000 available visa numbers for H-1Bs, 20,000 of which are allotted to workers who obtained advanced degrees in the US.  This cap is often reached within weeks of April 1, and sometimes even within the first week of the filing period.  Thus, employers should begin preparing their H-1Bs early since the availability of visa numbers is limited.  

 When the USCIS is not be convinced that the position qualifies as a ‘specialty occupation’, it will issue an RFE asking the petitioner to establish that the position meets any of the following criteria: (1) a Bachelor’s Degree or higher degree or its equivalent is normally the minimum requirement for the position; (2) the degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a Bachelor’s Degree in a field related to the position; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s Degree or higher. 

 The burden rests with the petitioner to establish that the position does qualify as a ‘specialty occupation.’  The Department of Labor’s Occupational Outlook Handbook sets out what positions in what fields normally require a degree and what degree is normally required.  If the Occupational Outlook Handbook does not state that a bachelor’s degree is normally required, the employer must justify the need for a bachelor’s degree by other means.  She will have to submit additional evidence to demonstrate that the position normally requires such a degree.  This type of evidence varies but could potentially include the petitioner’s prior advertisements for the same job or job advertisements from other employers reflecting that the minimum requirements for the position include a bachelor degree thus showing that the degree requirement is common to the industry for similar positions in similar organizations.  The evidence may also include a description of the position’s duties, establishing that the position is so specialized and complex that it can only be performed by someone with a degree.  

 Another possible reason for the RFE is that the USCIS doubts that the potential employee’s degree is in a field related to the specialty occupation.  The petitioner therefore must show the applicability of the degree and/or experience to the position.  The USCIS will want to see evidence about similar companies in the industry, a detailed explanation of the specific duties of the position, or even more specific information about the products or services offered by the company.  

 One should put one’s “best foot forward” and prepare the H-1B petition as thoroughly and completely as possible.  One should never assume that a “less than perfect” petition can be cleaned up later when the RFE is received.  However, RFEs are issued regarding well-prepared and well-documented petitions.  These requests for further evidence should be looked at positively.  The officer is setting out what she needs in order to approve the petition.  Providing the officer with what has been requested will result in the approval of the petition.  Therefore, the RFE should be responded to with as much diligence and care as was used in the preparation of the petition.  The RFE should be regarded as a road-map to approval.  To reach the desired destination, one should make sure the driver is a knowledgeable and experienced immigration lawyer.