Immigration Insights

Over the years of Clark Lau's practice, we have been receiving Requests for Evidence ("RFE") from the USCIS for H-1B petitions. While it is hard to predict what a particular officer is thinking when reviewing a petition, we are hoping that by sharing some actual RFE language with you, we can provide some insights. Please note that RFE language is not always reflective of the actual immigration regulations; it is more of the immigration service's particular interpretation of the regulations for that case. The following information is for educational purposes and you should contact immigration counsel to determine what is most appropriate for your facts. The following is an example of a RFE from the USCIS to demonstrate that an employer has sufficient "in-house employment." USCIS requested the following: Provide evidence that you have specialty occupation work available for the requested H-1B validity period. The following list contains suggested evidence that may be submitted. This list is not inclusive; you may submit other similar types of evidence that you feel will establish sufficient specialty occupation work.

• Copy of relevant portions of valid contracts, statements of work, work orders, service agreements, and letters between you and the authorized officials of the ultimate end-client companies to whom the end product or services worked on by the beneficiary will be delivered;
• Copy of a position description or any other documentation that describes the skills required to perform the job offered, the tools needed to perform the job, the product to be developed or the service to be provided, the method of payment, whether the work to be performed is part of your regular business, the provision of employee benefits, and the tax treatment of the beneficiary by you;
• Signed copies of your two or three most recently filed Federal income tax returns to include all required schedules and statements;
• Copies of company brochures, pamphlets, Internet websites, or any other printed work published by you which outlines, in detail, the products or services provided by your company;
• Copies of critical reviews of your software in trade journals that describe the purpose of the software, its cost, and its ranking among similarly produced software;
• Copy of the marketing analysis for your final software products; and/or
• Copy of a cost analysis for your software product.

USCIS is questioning the type of work the beneficiary will be doing. They are looking for evidence that sufficient work exists and will be able to last for the duration of the H-1B petition. One take away is to ensure that an employer makes it clear as to what an individual will be doing and that the employer's operations will need the person. Sometimes this will include breaking down the duties by hour and percentage. Also, it is always best to provide hard evidence concerning the employer's activities and how the individual's skills will be employed. Again, each case is different and we recommend that you seek proper immigration counsel to see what's most appropriate for your case. We hope this educational insight was helpful nonetheless. Special thanks to Clark Lau team member Shannon Lee for her contribution to this post.