what happens when h1b amendment rejected due to speciality occupation

Not all responses from the USCIS about your H-1B petition volition be approvals, rejections, or denials. Sometimes, y'all volition be sent an H-1B RFE to provide more information to the USCIS and help them make a decision on your case. It is of import to recognize and RFE when you get i and to act accordingly and swiftly.

H-1B Requirements

Earlier nosotros get into why y'all might receive an H-1B RFE, we need to briefly comprehend the requirements tied to this pop visa. In order to qualify for an H-1B, you need to:

Have at least a bachelor's degree from a U.Southward. institution
Accept a job offer from a U.S. employer that requires your bachelor's degree

Ostensibly, that's it. These low requirements are what brand the H-1B then popular since some of the other nonimmigrant work visas require you to have extraordinary ability or invest a considerable amount of money.

However, in that location is more to the second requirement than meets the eye. Your position must be considered a specialty position, which, according to the USCIS, ways that it must crave a bachelor's degree in order to perform. However, the USCIS usually favors occupations in the Stalk categories (Science, Engineering, Engineering science, and Mathematics).

Additionally, there must be an existing employer-employee human relationship between you and your sponsoring employer. This could crusade problems for those that are self-employed, own a business, or were sponsored past a staffing agency.

What is an H-1B RFE?

An RFE, otherwise known equally a Request for Evidence, is an inquiry past the USCIS in social club to request additional proof necessary to make a decision pertaining to your H-1B case. Y'all'll find out if y'all have an outstanding RFE past checking the status of your H-1B using the online case status tool or receiving the request in the mail.

This information can be regarding the petitioner, casher, or both, since the USCIS must run across sufficient proof of an employer-employee relationship. From the time you receive the RFE, y'all take 90 days to submit the appropriate documents and you should take great care to ensure that yous are thorough in answering all inquiries. Otherwise, you run the risk of delaying your instance farther or including data that may harm the outcome. For that reason, it'due south highly recommended to navigate the process with the help of a specialized clearing attorney.

Common Asking for Bear witness Reasons

The USCIS uses a tool known as the Validation Instrument for Business Enterprises (VIBE). What VIBE does is use the information that's commercially available to confirm data regarding the petitioning employer.

Some discrepancies may arise if there is a recent change of address, change of construction or other mismatched information between the VIBE system and H-1B petition. Therefore, you lot may receive an RFE requesting information like the employer'due south Federal Tax ID Number, wage reports, charter agreement, financial statements, etc.

H1B RFE Reasons and Responses

The near common H-1B RFE reasons include:

Determination of a specialty occupation

H-1B visas are granted to individuals who are qualified workers in a "specialty occupation". In order to qualify as such, you will be required to adhere to one of the following requirements:

The minimum requirement is typically a bachelor's degree (or equivalent) for the position. The position may also be so complex that it requires a degree. O ther requirements may also utilise. While these regulations are pretty much set in stone, the blessing of a "specialty occupation" typically comes down to the judgment of the adjudicating officer. They await past the surface and may request paperwork similar the beneficiary's work experience, detailed job description, industry-broad practices, proposed salary, etc.

Petitions filed on behalf of businesses for professionals non typically associated in that field.

This point is a bit challenging to explain but it does occur from time-to-time. Basically, an RFE may be requested if a minor business is filing an H-1B petition for an conflicting who possesses skills not commonly associated in that field. For example, a petition for a fiscal planner filed by a construction business concern. The USCIS may non meet a correlation betwixt the two and be led to believe that the beneficiary will exist placed in a position of less chapters and/or detect other piece of work when arriving. The major point for the employer to exhibit is that the beneficiary will be performing a role in a 'specialty occupation'.

Caste in a divide field of study

Cases be where an individual may have a available's degree but it may not exist in the same field as the proposed position. If that's the case, the RFE will request an caption detailing how the caste relates to the position. Likewise, if the worker does non accept a available'due south degree from the U.Due south they may need to submit proof of the strange degree equivalent. Proof of experience may besides be required in the course of past employment letters or evaluations from official sources like a college or university.

Questionable employer-employee relationship

Equally previously mentioned, the USCIS must run into that an employer-employee relationship exists in order to approve an H-1B petition . The lines are oft blurred when the sponsored worker is predictable to exist working off-site. When that'south the case, an RFE may asking data that establishes the employer has the ability and right to control how, when and where the worker performs the job. They must also show the proper documents to prove that the specialty occupation can exist performed at that off-site location. Boosted documents may include the organizational nautical chart (concatenation of command).

Requests for an extension or change of condition

If an H-1B petition is filed for an extension or change of status, sufficient documentation must be provided to demonstrate the worker has maintained their current status by submitting pay statements.

LCA issues

The H-1B Labor Condition Application (LCA) is an important part of your H-1B petition. If your employer skipped it, forgot to include information technology, or at that place is an issue in the one that was submitted, you lot will most likely receive an H-1B RFE from the USCIS. The main purpose of the LCA is to establish that the terms and weather of the employment meet the H-1B requirements.

Chore itinerary bug

If your employer is going to place yous on a specific consignment that requires being at an finish-client location, your H-1B petition must include the itinerary with a detailed description of your job duties, the duration of the chore, the chore requirements, the bacon, benefits, hours worked, and the information nearly who is going to supervise you. If all these items are not clear in the petition submitted by your employer, the USCIS may transport y'all RFE.

Living far away from your place of work

You may receive an H-1B RFE if you live in a place that is relatively far away from your office. Recently, the USCIS has been paying more attention to every detail in H-1B petitions. There have been some cases where people were asked to provide an explanation to justify why they lived and so far from their identify of work. The argument is that a beneficiary'due south residential address and address of intended employment must exist within a normal commuting area. This RFE tin can be resolved by providing a justifiable reason for living at such a distance.

AC21 and the vi-year limit

Y'all may receive an RFE apropos the AC21 and the six-twelvemonth-limit if your employer failed to establish that y'all are eligible for AC21 benefits or eligible for an H-1B extension. This can happen if it appears that you accept reached your six-years limit on your H-1B. The AC21 is the American Competitiveness Act in the 20-kickoff Century Deed of 2000. The Act allows H-1B employees to extend their stay beyond six years under two weather:

If the H-1B employee has a pending labor certification for an employment-based green card that was filed over a year ago
If both the labor certification and I-140 have been approved only there is no available green card currently for the H-1B employee. To avoid receiving an RFE due to this, your employer may include copies of the approved labor certifications and/or I-140 to testify your eligibility for an extension. He or she may likewise provide your trip itineraries as well as entry and get out stamps to recapture the fourth dimension you spent exterior the United states of america.

In the in a higher place two scenarios, you are eligible for an extension across six years. Notwithstanding, the petition submitted past your employer must reverberate at least one of those two instances to avoid receiving an RFE.

F-ane OPT or CPT

If you have had optional practical training (OPT) or curricular practical training (CPT) during your F-one status, you may receive an RFE from the USCIS, especially if you had OPT or CPT more than once at each level of your instruction. For instance, if you had CPT or OPT when doing your available's degree, you tin but use information technology again when you get to the master's level. If your petition reflects the use of any of these twice, you may get an H-1B RFE . For instance, you lot may get an RFE if you have two primary's degrees, and you used OPT/CPT during each of the master's programs.

In-house projects at consulting companies

This type of RFE is more common for Information technology consulting companies. Many of these companies hire H-1B workers to work every bit developers, analysts, or engineers for clients' in-house projects. These types of petitions oft face hurdles as the USCIS will want the employer to bear witness that a legitimate H-1B employer-employee relationship exists. Suspicion sometimes arises if the H-1B employee will be stationed at the client'due south worksite rather than the workplace of the petitioning employer. The USCIS will need additional documentation to be convinced that the system isn't just for a marginal project for the purpose of exploiting the H-1B system.

In addition to other full general supporting evidence for your H-1B petition, your employer should provide the documents that demonstrate that the in-house project is a specialty occupation and there is a justifiable reason for the entire duration requested in the petition.

RFE Response: Best Practices

Proceed these other considerations in mind when answering an RFE :

Read the RFE fully and if you don't understand something, ask your immigration attorney.
Don't make any rash decisions if you lot've received an RFE. It is not grounds to panic, just a tool used by the USCIS to larn more near your case.
Do not answer the detect in parts. Answer the questions fully and completely the first time around since the USCIS doesn't typically send a 2d ane if you lot happen to take missed a point.
Double check the mailing address and included documents.
Submit your response before the deadline catamenia ends. When you wait last infinitesimal you run the hazard of missing the deadline date, and then you lot'll likely receive a denial at which betoken you lot'll have to file a movement to reopen the instance. Of course, that's not the platonic situation, but if you need assistance filing a motility to reopen the case, the VisaNation Law Group can assistance yous with that besides.

H-1B RFE Trends and Charge per unit

Every alteration of the H-1B—be it a transfer, an extension, or an entirely new petition—requires an employer to ship an I-129 form to the USCIS. This opens the case up to an RFE each time the petition is filed. At present that the new presidential administration is more heavily scrutinizing all H-1B petitions under the "Buy American, Rent American" deed, the H-1B RFE trend has increased.

Additionally, the H-1B denial charge per unit has also increased. Based on numbers released annually by the USCIS , the approval rate is steadily failing. Over 80% of H-1B RFEs were canonical in 2015, and since then, that percent has been whittling downwards to the virtually 60% H-1B RFE approval rate for 2019.

Co-ordinate to this same information, the percentage of H-1B petitions that receive an RFE is increasing. In 2015, the RFE rate was between ten% and 30%. Now, in 2019, that rate has gone up to simply over 60%.

Lastly, the percentage of H-1B petitions that are approved at all is declining. In 2015, the approval rate was in the high 90th percentile. This dropped to shut to 75% in 2019.

RFE vs NOID

RFEs are sometimes issued simply considering there was a missing document or an error with the information entered into the petition. A Notice of Intent to Deny (or NOID) is a much more serious situation. NOIDs are issued when the officer in charge of evaluating your petition is planning on denying your petition. Because there is a difference between rejection and deprival (rejection oft happens afterwards a technical error such every bit omitted data or fee payments; deprival usually takes place if yous do not merit the visa), a NOID ways that the officeholder does non think that you or your employer are qualified for the H-1B.

NOIDs are issued in order to avoid having petitioners re-file just to encounter the same fundamental problem. However, y'all tin can even so save your case by presenting evidence or documentation that solves the bug raised in the NOID, much like you lot would for an RFE.

Can a Beneficiary Reply Directly to an RFE?

No. Just the same way yous are not immune to sign an H-1B petition, yous cannot respond to an H-1B RFE as an employee. The RFE is the responsibility of your petitioning employer. Though you can be made aware of the RFE past checking the condition of your case online using the instance receipt number of your petition.

What is the Probability That My H-1B Employer Will Receive an RFE?

You will near likely receive an RFE if whatsoever of the bug addressed above occurs in your petition. With the USCIS condign more strict when processing H-1B petitions, there has been an increment in the rate of annual RFEs. As we mentioned above, in 2019, no less than 60% of the total petitions received an RFE.

H-1B Visa Requirements
H-1B Visa Documents
H-1B Almanac Cap
H-1B Visa Stamping
H-1B Visa Transfer
H-1B Visa Extension
H-1B Dependent Employer
H-1B for Nurses

whitforddights1963.blogspot.com

Source: https://www.immi-usa.com/h1b-rfe-reasons-and-responses/