More than a third of employers' H-1B visa petitions in 2018 received requests for evidence (RFEs) from U.S. Citizenship and Immigration Services (USCIS), as denial rates grew and approval rates fell.
About 38 percent of H-1B petitions filed in 2018 received RFEs, compared to about 22 percent over the prior three years. In 2018, denial rates more than doubled from the previous three years to almost 16 percent. The rate of approvals for petitions subjected to RFEs fell to 60 percent, compared to an approval rate of more than 80 percent in 2015.
Understanding which factors USCIS uses to judge visa eligibility is critical. Here are the top three reasons the agency issued RFEs for H-1B petitions; employers can use this information to try to anticipate issues that adjudicators might raise. RFEs may be issued for more than one reason.
"Employers must also be prepared to provide even more information and documentation [after filing], since RFEs and even denials will again be the norm this year," said Beth Carlson, an immigration attorney and counsel in the Minneapolis office of law firm Faegre Baker Daniels.
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1. Specialty Occupation
The most frequent reason RFEs are issued in response to an H-1B petition is failure to establish that the job qualifies as a specialty occupation. "It's by far the most common question asked in RFEs and the most common reason for a visa denial," said Andrew Greenfield, a partner in the Washington, D.C., office of global immigration law firm Fragomen.
To qualify for an H-1B visa, the employer must demonstrate that the position is a specialty occupation by providing evidence that the job requires the understanding and application of a specialized body of knowledge and normally requires at least a bachelor's degree, or its equivalent, in a particular field.
USCIS has recently narrowed its interpretation of what qualifies as a specialty occupation and often seeks more evidence when job duties do not appear specialized enough to require a bachelor's degree in a specific field, or when the applicant's degree field is not considered specialized enough for the role.
"Approval or denial often comes down to a judgment call by the adjudicating officer," said Emily Neumann, a partner at law firm Reddy and Neumann in Houston. "The Department of Labor's Occupational Outlook Handbook is often consulted to determine whether the position offered qualifies as a specialty occupation. The adjudicating officer will not look at the job title alone but instead consider all the facts surrounding the petition, like the beneficiary's education and work experience, the nature of the petitioner's business, industry practice and salary."
Greenfield recommended employers first determine how the job being offered aligns with the most closely related occupation as defined by the Department of Labor (DOL) to get a sense of what the minimum educational requirements are for the job. "You want to look at two things," he said. "Does the DOL observe that a bachelor's degree-level education is normally required, and does the DOL further elaborate on what field or fields of study workers in that occupation typically have? That's important because the regulations require at least a bachelor's degree or an equivalent in a specific course of study. It can't just be any bachelor's degree."
Employers should provide a list of duties, roles, responsibilities, and education and experience requirements necessary to perform the job.
Job descriptions need to be as specific as possible and very closely related to the Standard Occupational Classification (SOC) code that is used on the petition's labor condition application, Carlson said. "Employers should review the job details, tasks and technologies as part of the SOC code and try to incorporate these items into the employee's job description, if possible. Including special skills, technologies and possible coursework related to the job can be helpful to the specialty occupation argument."
Neumann said that RFEs will often ask for a more detailed job description, documentation from other workers who work in the same position, and job ads used for the offered position.
Although scrutiny may remain around entry-level wages, the USCIS Administrative Appeals Office (AAO) ruled twice in 2018 that Level 1 and Level 2 wages are not determinative of whether a position is a specialty occupation, said Sari Long, an attorney with Faegre Baker Daniels in Washington, D.C. "This is good news for employers, as it means that if an H-1B is denied at least in part on that basis, the AAO will have a more favorable view of the wage issue."
2. Employer-Employee Relationship
Employers must be able to demonstrate a valid employer-employee relationship with the H-1B worker for the duration of the requested period of employment.
"Typically, in situations where the sponsored worker will work offsite with a third party, USCIS will look at a number of factors to determine whether a valid employer-employee relationship exists," Neumann said.
This issue often arises with businesses in the consulting or staffing industries and usually means the agency is looking at whether or not the employer has a sufficient level of control over the employee. "The petitioner may be requested to submit documentation to establish that it has the right to control over when, where and how the beneficiary performs the job," she said.
Greenfield said that this evidence can be shown in the employer's letter of support, contractual documentation with the client and a statement of work that defines the project or the deliverables that the H-1B worker will be assigned. Including a letter from the client acknowledging the work arrangement is also a good idea, if possible.
USCIS also issues RFEs to petitioning employers that fail to establish that the H-1B worker at a third-party site will be engaged in specific work in the specialty occupation for the requested period of employment. To prove steady work exists, an employer may provide copies of signed contracts, detailed work assignments and work orders signed by clients.
"USCIS wants to see detail, so it can be helpful to provide a detailed job description with the percentage of time the worker will be spending on each job duty," Greenfield said.
3. Worker Qualifications
An employer must prove that the H-1B beneficiary has the required credentials to work in the job. "The education of the H-1B worker must match the requirements of the job, and the fields of study must be specific to the job opportunity," Long said. "In the past, 'close enough to the related field' might have been OK to gain approval, but this is no longer the case."
Long explained that if the foreign worker has a degree in an unrelated or a somewhat related field but many years of work experience in a field related to the job, the employer should obtain an evaluation that determines that the education plus the work experience is equivalent to the requirements requested by the position.
"In addition to obtaining a credentials evaluation, the employer will also want to show in the company support letter why the background of the H-1B worker qualifies and is acceptable to the job opportunity," she said.
“USCIS allows three years of professional experience to substitute for each year of college-level training,” Neumann said. “The adjudicating officer will decide whether the quality of experience is at high enough level to qualify. Experience is generally documented through letters from past employers and an RFE may be issued if the experience letters used for the evaluation lack specificity.”