Is It Normal to Get a Request for Evidence on an H-1B?

Yes.  Since the advent of the Trump Administration, we have seen a significant uptick in the number of Requests for Evidence (RFEs) issued by USCIS on H-1B petitions. The most common type of RFE appears to be that questioning whether a position is truly a “specialty occupation” for which an H-1B is intended and whether the U.S. Department of Labor (DOL) Wage Level listed on the Labor Condition Application is appropriate.

First, a specialty occupation is one that requires a “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.” INA § 214(i)(l). Some positions are expressly specialty occupations – architecture, engineering, physical sciences, medicine, accounting, law, and a handful of other positions fall in that category. For many other positions, though, the employer must prove to USCIS that the position is a specialty occupation by establishing at least one of four requirements:

  1. A bachelor’s or higher degree, or its equivalent, is normally the minimum for entry into the position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations, OR the employer’s particular position is so complex or unique that it can only be performed by someone with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.

While it may seem at first blush that each of the above is straightforward and easy to prove, such is not the case.  In fact, a highly detailed analysis of the position and its requirements needs to be performed in order to adequately assess how to respond to the RFE.

A second common RFE topic is the DOL wage level.  USCIS often questions whether the proposed position actually corresponds to the wage level set forth on the submitted LCA.  If the wage level is listed as Level 1 – which connotes an entry level position – USCIS is likely to closely scrutinize the position, arguing that a position cannot be both entry-level and sufficiently specialized and complex to warrant an H-1B visa.  USCIS’s argument is fundamentally flawed, though, and many appellate decisions confirm that a Level 1 wage designation does not preclude a position from being a specialty occupation.  For instance, an entry-level physician is still in a specialty occupation.

Particularly of late, USCIS will often come up with a reason to send an RFE, so do not be alarmed.  However, it is important to critically analyze the RFE and properly address the concerns noted therein.

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