Requests for Further Evidence commonly referred to as RFEs have become commonplace in the Immigration world, particularly for employment-based petitions such as H-1Bs and L-1s.
In FY 2018 the number of RFEs skyrocketed and this trend continued into FY 2019. This increase in challenges from USCIS is largely due to various policy issues by USCIS under the direction of the Trump administration. President Trump signed the “Buy American and Hire American,” Executive Order, which aims to put the jobs of U.S. workers first. In protecting the jobs of U.S. workers, it has now become much more difficult for foreign workers to obtain approval of their visa application. Following that Executive Order, USCIS released several policy memos which essentially created new requirements and placed a much higher evidential burden on Petitioners.
RFEs are regularly issued in H-1B cases, not only for those filing their first H-1B, but also for those seeking amendments or extensions of their current H-1B status. RFEs will typically cover one of the following issues:
- Whether there is a valid employer/employee relationship between the Petitioner and the Beneficiary and whether the Petitions has the right to control the Beneficiary’s work;
- Whether there is specific and non-speculative work available for the entire requested period, usually 3 years;
- Whether the position qualifies as a specialty occupation; and
- Whether the candidate has maintained their F-1 status.
Because USCIS is not staying faithful to the statute or the regulations responding to these RFEs has become much more difficult and requires the advancement of complex legal arguments. If you have received an RFE please reach out to one of our experienced Immigration Attorneys who can assist you in drafting the strongest possible response.
RFEs are also commonly issued in the context of both L-1A (Manager/Executive) or L-1B (specialized knowledge).
For L-1As the RFEs tend to focus on the managerial/executive nature of the position and whether the candidate will manage/supervise professional employees. This type of challenge requires substantial documentation showing that the candidate’s subordinates are working in a position that typically requires a specific Bachelor’s degree and that the subordinate possesses that degree. Furthermore, documents are required to demonstrate that the L-1A candidate actually assigns tasks to their subordinates, reviews their performance, is responsible for recruiting, etc.
L-1B RFEs tend to focus on whether the knowledge is truly specialized, in other words, whether the knowledge is unusual or unique in some way to the extent that the Petitioner cannot find a suitable candidate in the U.S. This challenge usually requires a Petitioner to demonstrate that only through training at the foreign entity could an individual obtain the knowledge required to perform the position. In order to do this, you will have to provide substantial documentation such as detailed training records etc.
Any petition that is filed with USCIS is at risk of receiving an RFE to include an E-3, Change of status application, EB-5, etc. Whatever the type of RFE you have received the Attorneys at Patel Law Group can assist in drafting a detailed response to improve your chances of obtaining an approval. If you require assistance with an RFE, please e-mail our Senior Immigration Attorney at firstname.lastname@example.org.