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H-1B Request for Evidence

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H-1B Request for Evidence

An RFE, formally known as a Request for Evidence, is a request from USCIS to provide further information or documentation relating to the H-1B petition. In general, an RFE notice will contain separate parts, including:

  1. The facts of the case;
  2. The applicable law;
  3. The list of evidence previously submitted to USCIS; and
  4. A deadline for the response. It is important to submit a strong and persuasive response to an RFE.

Common Questions about RFE and RFIE Notices

Is an RFE the same as an RFIE?

Technically, no. An RFIE is a Request for Initial Evidence. An RFE is a request for additional evidence. However, both types of notices have set deadlines.

An RFIE is generally easier to resolve. It may be issued for initial documents, such as but not limited to: passport, visa, I-94, educational documents, marriage certificate, birth certificate, pay stubs, etc. Unlike an RFE, the RFIE typically does not require a detailed response.

An RFIE may be issued if documentation was missing from the initial record or if documentation became separated or misplaced after the filing was received by USCIS. An RFIE will be issued to ensure that all necessary information and documentation has been provided for the application or petition to be reviewed thoroughly.

Is an RFE the same as a Notice of Intent to Defy (NOID)?

No. A NOID is more serious than an RFE. The notice indicates that USCIS will likely deny the benefit request sought unless the issues are overcome. Less time is provided to respond to a NOID.

Why was an RFE received?

An RFE may be issued for any number of reasons. It may be issued for missing documents or information. However, it may also be issued if the USCIS officer has inadvertently overlooked documentation submitted in the initial petition or misunderstands the filing. USCIS has the discretion to issue an RFE for almost any reason.

Can USCIS deny a petition without an RFE?

Yes, it can.

Is an RFE issued by fax or mail?

If the employer-sponsored case was filed with a request for premium processing, USCIS will typically send the RFE via fax to the attorney-of-record or to the employer. If the case status shows that an RFE has been issued under premium processing but the RFE has not been received, the attorney-of-record may directly contact the premium processing unit via email or phone.

If the case was filed with a request for regular processing, the RFE will typically be sent via USPS mail. It should be received within 2-3 weeks from the date it was issued by USCIS.

The USCIS case status shows that an RFE was issued on my case, but I didn’t receive a copy of the notice. What do I do?

For employer-sponsored petitions (ex. H-1B, L-1, E-3, TN, etc.), the RFE notice will be sent directly to the employer. The employee will not receive a copy of the notice unless the RFE was issued on an independent application (ex. I-765, I-131, I-485, I-539, etc.). In order to obtain a copy of an employer-sponsored RFE, the employee will need to speak with the employer directly.

If neither party has received the RFE notice within 30 days, a request for a duplicate notice may be submitted to USCIS. Using the ‘non-delivery of document’ section of the USCIS site, an online request may be submitted by the H-1B employer. After the request is submitted, USCIS will provide a confirmation number. The confirmation number should be kept in a safe place until the notice is reissued.

Can I respond to the RFE notice myself even if the attorney received the original notice?

Yes. However, you should notify the attorney first to discuss the reasons why you wish to file the response by yourself. Depending upon the nature of the RFE, the attorney may need to remain involved.

While some RFE notices appear straightforward, there may be other non-obvious legal issues which can only be identified by a trained attorney. Often, the RFE notices will contain not only standard language that is inapplicable to a case but also subtle language indicating other legal issues. Having the professional knowledge and skill of an attorney is important.

Can I change my attorney after an RFE was issued on my case?

Yes. After the RFE has been issued, a new attorney may handle the response. The RFE response must include a new G-28 signed by the attorney and the employer. Thereafter, USCIS should issue the notices to the new attorney.

Can I get a second opinion on my RFE response from an attorney who did not handle my case before or after it is filed?

Yes. To provide feedback, the reviewing attorney generally must be provided with access to all information and documentation related to the initial filing and the RFE response.

Please remember that attorneys have different filing strategies. There is generally more than one way to respond to an RFE which will lead to a successful outcome. Hence, the advice of the attorneys may differ.

Does receiving an RFE mean my case will be denied?

No. A response to the RFE must be filed by the deadline indicated in the notice. The response should clarify the information in the initial filing and/or provide missing or additional documentation. If, after reviewing the documents and information, USCIS is satisfied that the criteria has been met, the case may be approved.

Can USCIS issue more than one RFE on my case?

Yes. In rare instances, USCIS has issued more than one RFE on a case.

How long does it take to prepare an RFE response?

Generally, it may take a few weeks to months to prepare and submit the response. The response must address all issues raised in the RFE. Filing well before the RFE deadline does not increase the chance of approval. Therefore, individuals generally should take their time and work closely with an attorney to make the response as strong as possible.

What are the most common reasons for an H-1B RFE?

Some of the most common reasons for an H-1B RFE are listed below. This list is not comprehensive.

  • There is a question as to whether the position qualifies as a specialty occupation.
  • The Business Enterprises (VIBE) system shows a mismatch in employer information.
  • There is a question as to whether the employee is qualified for the position on the basis of education and/or experience.
  • There is a question as to whether there is sufficient specialty occupation work for the employee for the duration of the requested employment period.
  • It is unclear if the employee and employer maintain a valid employment relationship.
  • It is unclear if the employee has maintained his/her immigration status.
  • There is a question as to whether the Labor Condition Application was properly filed to support the petition.
  • Documents were submitted without certified English translations.
  • Documents are missing which are needed to adjudicate the case.
  • It is unclear if the employee is eligible for validity period requested.
  • There is a question as to whether the correct wage level was offered to the employee.

Where can I find more information relating to the issuance of an RFE?

USCIS regularly releases data and statistics relating to filed petitions and applications. The USCIS site also contains historical RFE data. The database also indicates how many cases were approved after an RFE was issued.

Please contact Stone Oak Immigration PLLC for a case-specific consultation regarding your RFE needs and concerns.