As in the previous years, the H-1B lottery for FY 2025 was equally intense. USCIS just announced that it selected 114,017 unique beneficiaries from the lottery, with 120,603 selected registrations in the initial selection performed in the last few days of March. The use of the word “initial” suggests that USCIS is likely to make another selection. Hence, the unselected applicants should not give up hope yet. For the lucky selectees, this is no time to relax. Formal requests for evidence are very common in H-1B cases, and a percentage of cases are denied every year. The following are some common reasons for the issuance of RFEs and/or denials:
1) Failure to prove “specialty occupation”: H-1B visas are issued to professional workers who engage in a “specialty occupation,” which normally requires a bachelor’s or higher degree in a specific subject area, or its equivalent, as the minimum requirement to enter the profession. The employer may also prove that its company usually requires a degree for the position, or that the job nature or duties are so complex or unique that it can be performed only by an individual with a degree.
2) The petitioner is not an eligible H-1B employer: USCIS routinely verify an employer’s corporate and financial information with government and commercial databases such as those provided by Dun & Bradstreet. RFEs will be issued if the corporate name, identity, address, federal employer ID number, etc., do not match with the information provided by these databases. Newer and smaller companies’ H-1B petitions are particularly vulnerable, as they may be viewed as too small to need the services of an H-1B employee.
3) Failure to prove a bona-fide position: USCIS promulgated a new rule in October 2023 to modernize H–1B requirements. One of the requirements is that the employer must prove that there is a real and concrete job offer for the beneficiary. Documents such as business contracts, third-party agreements, project or program documents, etc., are required to support the petition.
4) Issues with job location: The job location is also an area of focus in many RFEs, as it affects both the market wage and also veracity of the job offer. The actual locations where the job duties will be performed must be correctly reported in the Labor Condition Application (LCA). If the job location is wrong or unclear, or if there are multiple locations, an RFE will likely be issued. Remote and hybrid work arrangement is common in the post-COVID19 era. Employers should be particularly careful with this issue.
5) Payment of market wages: Employers are required to pay H-1B employees market wages (or actual wages if higher) as stated in the Labor Condition Application. H-1B jobs are usually professional occupations that command higher salaries than average. If the LCA contains incorrect wage information, or if it is not clear that the employer has sufficient financial resources to pay the required wage, an RFE will be issued. For smaller companies that do not have sufficient business profits, other evidence must be submitted to satisfy this requirement.
6) H-1B employee’s education and qualifications: H-1B occupations usually require the attainment of a bachelors’ degree or its equivalent in order to enter the profession. Many jobs also require other qualifications such as previous training and work experience. Professional jobs may also require state-issued licenses and professional degrees. If it is not clear from the H-1B petition submitted that the foreign worker processes the required qualifications for the position, an RFE will definitely be issued.
7) Correct filing address, fees, forms, etc.: Last but not least, many H-1B petitions are rejected or denied for technical reasons such as use of wrong filing address and payment of incorrect fees. USCIS made substantial changes in the filing addresses, application fees, and form editions as of April 1st of this year. Applicants should double-check their petitions before filing to ensure that there are no technical errors.
There are other reasons for issuing RFEs and/or denials in H-1B petitions. In fact, USCIS can actually deny an H-1B petition outright without issuing an RFE first if it is determined that additional evidence will not be possible to overcome the deficiencies in the petition. Sometimes, USCIS may also issue a Notice of Intent to Deny (NOID) if there is little or no evidence submitted, or if there is a discretionary issue in the case to consider (although the basic requirements are net). Hence, it is important to provide a well-prepared and legally sufficient H-1B petition.
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