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How to respond to an H1B Transfer RFE?
May 26, 2022
9 mins
An envelope from USCIS (United States citizenship and immigration services) in hand, blurry on a white background.

In this article, you will find the following topics:

  • H1B Transfer
  • Types of H1B RFE
  • Guidelines to avoid receiving an H1B RFE
  • How to respond to a H1B Transfer RFE

We recommend you spend some time becoming familiar with the H-1B visa before we learn how to respond to an H1B transfer RFE.

Did you know that the USCIS could send an RFE or Request for Evidence for your H1b petition to your employer even if you apply for an H1B Transfer? However, there is no need to worry or panic. The RFE is merely a request from the USCIS asking for additional documents or evidence to process your visa and arrive at a decision. The first thing to do when your employer receives an H1B Transfer RFE is to respond to it by gathering the required documents, verifying, and sending them to the USCIS within the stipulated time.

But first, let's do a quick recap of the H1B Transfer.

What is the H1B Transfer?

It is a well-known fact that H1B holders can change their employers any number of times as long as they maintain their visa status. The process of changing an employer under the H1B visa is known as H1B Transfer. If you are an H1B holder applying for a transfer, you must first accept your new job offer and have a valid H1B visa.

Like most visa processes, the H1B transfer may also take weeks or months before the USCIS decides whether to grant or deny your transfer approval. However, in some cases, the agency may send an RFE before making a decision. An RFE does not mean your RFE is denied. It means that the USCIS wants additional evidence to:

  • Research your case through their internal channels.
  • Dig deeper into your documents for further clarification.
  • When the USCIS is unsure about your petition, they will:1. Ask for more evidence through an RFE.
    2. Schedule an interview for you to attend.

Before 2008, receiving an RFE for an H1B Transfer was uncommon. However, Transfer RFEs became a common occurrence after the USCIS tightened its rules and regulations. Hence, you should not be surprised if you receive an RFE even for your H1B Transfer.

You should also know there are multiple types of RFEs designed to gather various information from the petitioner. Here's a small compilation of the common RFE types.

Also Read: H1B RFE

4 Common Types of RFEs on H1B

1. RFE to prove the employee-employer relationship

In some cases, the USCIS will issue an RFE if it feels there is a lack of substantial evidence to prove the existence of an employee-employer relationship. The USCIS will want to know if the H1B worker is being employed full-time or if the employer is withholding taxes.

2. RFE to assess the petitioner's educational qualifications

Degrees earned outside of the United States are especially susceptible to this RFE. For instance, the degree or educational institution might be compared by the USCIS with its equivalent in the US.

3. RFE to determine the qualification for a specialty occupation

If your petition receives an RFE for this reason, the only way to obtain approval is for your employer to provide ample evidence that you are qualified for the specialty occupation. The least you can have is a bachelor's degree from a reputed institution deeming you are qualified for the job position.

4. RFE for financial documents from a new business

The USCIS will sometimes ask for documents to determine two aspects of a new business:

  • Whether or not they are staying ahead of their financial dealings.
  • Whether they are in good standing with the Internal Revenue Service (IRS).

Not everyone who applies for an H1-B visa receives an RFE. Of course, the USCIS has full freedom to issue an RFE for any visa petition. However, you can avoid receiving an RFE by following some measures.

Also Read: Your Comprehensive Guide to H1B Transfer

4 Ways to Mitigate the Likelihood of Receiving an H1B RFE

1. Provide evidence to prove the employer-employee relationship

As far as the H1B visa is concerned, the sponsoring employer must provide all the documentation along with the H1B petition on behalf of the employee. To prove an existing employer-employee relationship, your employer must submit an attested Labor Condition Application, a copy of the contracts between the organization and the H1B employer, and other additional documents.

2. Provide daily tasks in non-speculative petitions

If you are holding a non-speculative specialty occupation, your employer should specify the daily assignments in the application. Although this step is not mandatory, these details can improve your chances of approval and mitigate the risk of an RFE.

3. Establish a valid job offer

Employers wishing to file an H-1B petition must prove the beneficiary will be employed in the specialty occupation and that the job vacancy was availaible when the petition was filed. They must also swear these facts under oath. If both the evidence and the attestation are fulfilled, no RFE will be issued.

4. Understanding the USCIS' views on "benching."

The USCIS can revoke an approved H1B petition if you or your employer violate any USCIS terms and conditions for approval. One of the specific reasons for this happening is "benching." Benching is legally banned for two reasons:

  • To prevent foreign employees from being treated unfairly by their H1B employers.
  • To protect the American employees' job opportunities and remuneration.

You can prevent an RFE if you follow all the above steps with good planning and ample precaution. We conclude this article with some tips for handling an H1B Transfer RFE.

6 Tips for the Employer to Respond to the H1B Transfer RFE

  • Always hire an experienced immigration attorney to help you with the RFE process. You should consult H1B visa experts about details like H1B transfer RFE reasons, RFE H1B transfer Premium Processing, etc.
  • Read the RFE slowly and understand every detail. Simply skimming through the details may lead to misunderstanding or incomplete responses.
  • Respond immediately to an RFE notice. Immediate response is crucial since there is no way to obtain additional time at this point.
  • Provide answers for an RFE in its entirety. This notice should not be answered part-by-part because the USCIS will not send you a second H1B Transfer RFE. With an RFE, you get only one chance to rectify your mistakes. So be wise and make optimum use of this opportunity.
  • Answer the given questions with clarity and ensure your answers are brief.
  • Place the RFE on top of all the other documentation when submitting it to the USCIS. It is a small but significant detail that you should not miss.

The Takeaway

Your employer must do everything to avoid receiving an RFE on your H1B Transfer. Although an RFE does not mean denial, it will only prolong the visa process. However, if your employer receives an RFE on your H1B petition, do not panic. Consult your immigration attorney and do the needful immediately.

For more information about the H1B visa and for details on US non-immigrant visas, follow/visit TechFetch H1B.

**Disclaimer: All H1B processes are subject to change. Kindly refer to the USCIS official website for the latest updates.

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