In the world of immigration, a Request for Evidence (RFE) is a notice issued by U.S. Citizenship and Immigration Services (USCIS) requesting additional information or documentation for an immigration petition or application prior to rendering a final decision. While an RFE may be discouraging, it does not necessarily mean that an immigration petition or application will be denied, but it may lead to uncertainty and delays when applying for an employment-based visa or work authorization. With the support of your legal partner, you may address USCIS’ queries and overcome the RFE successfully.

By developing a strong employment-based visa application initially, you are more likely to avoid RFEs and achieve faster, more favorable outcomes. Moreover, even if USCIS issues an RFE, strong employment-based applications filed initially often provide robust foundations to push back on any USCIS challenge. Here are some of the common reasons for RFEs, strategies to increase your chance of approval and how to manage RFEs if you do receive one.

Common visa application issues that lead to RFEs

While RFEs can seem intimidating and create significant delays, they’re more common than you might think. For fiscal year (FY) 2023, 9.9% of H-1B applications received RFEs — as well as 31.5% of L-1A applications, 38.2% of L-1B applications, 22.6% of O applications and 17.2% of TN applications. Similar trends are evident for FY 2024.

Percentage of visa applications that received RFEs per fiscal year 

H-1B visa applications L-1A visa applications L-1B visa applications O visa applications TN visa applications
FY ’24 (Oct.-June) 8.6% 27% 27.8% 19.3% 16.2%
FY ’23 9.9% 31.5% 38.2% 22.6% 17.2%
FY ’22 9.6% 34.4% 40.5% 20.7% 17.1%
FY ’21 16.2% 49.9% 57.0% 27.8% 24.3%
FY ’20 28.7% 51.9% 58.4% 30.4% 21.6%
FY ’19 40.1% 53.8% 55.0% 26.4% 24.5%
FY ’18 37.9% 43.9% 48.9% 22.8% 28.2%
FY ’17 21.3% 33.7% 41.6% 21.9% 21.9%

Source: USCIS Immigration and Citizenship data

During the first Trump administration, the percentage of visa applications that received RFEs climbed to 40% for H-1B, nearly 54% for L-1A, 58% for L-1B, 30% for O and 28% for TN.

Specific reasons for getting an RFE vary depending on the visa type, but there are several common issues across various applications:

  • USCIS error or administrative challenge
  • Incomplete or missing supporting documents, such as proof of employment, financial records or educational qualifications
  • Inaccurate or incomplete responses that may cause confusion or lead to misinterpretation
  • Failure to meet specific eligibility criteria for the visa type, such as educational or experience requirements

Visa application strategies to avoid RFEs

Preparation and attention to detail are crucial in avoiding unnecessary delays or denials. While you can’t guarantee a visa application won’t result in an RFE, you can take precautionary measures to reduce the risk.

Understand the specific evidentiary requirements for your case 

Each immigration case is unique, so it’s important to thoroughly understand the specific evidentiary requirements for the visa type you apply for. Review USCIS guidelines and instructions to ensure you provide all necessary documentation.

For example, if the petition you are filing requires that the offered position must be a “specialty occupation,” such as an H-1B or an E-3 petition, you must provide a detailed job description as well as supporting documentation that demonstrates the complex nature of the role.

Submit complete and accurate documentation 

Incomplete documentation is a common trigger for RFEs, and inaccurate documentation or information can result in the rejection of your petition, or it can greatly increase the difficulty of addressing the RFE itself.

Double-check all forms, supporting materials and evidence to ensure they are complete and up to date. Ensure you submit all required educational transcripts, diplomas and evaluations to demonstrate the foreign national’s qualifications for the position, as well as all the documentation required on behalf of the company.

By providing a comprehensive, well-organized package, you minimize the chances of receiving an RFE.

Address potential red flags proactively 

USCIS officers are trained to identify potential red flags in petitions and/or applications. Take a proactive approach by addressing any potential concerns or red flags in your initial submission. Include explanatory letters, additional evidence and relevant supporting documentation to clarify any issues.

For example, one common red flag for adjudicating officers is whether or not a legitimate employee-employer relationship exists between the company and the employee. Make sure to include employment contracts, offer letters, pay stubs and tax documents to establish a clear employer-employee connection.

BAL has developed AI and automation-powered analysis tools specific to immigration policy and industry benchmarking of historical data, enabling us to identify potential high-risk areas in a case and take proactive measures to achieve swifter, more favorable decisions.

In one case, BAL’s data analysis increased a client’s overall approval rate on some immigration case types by as much as 20%.

How to respond to an RFE

If you do receive an RFE on a visa application or petition, there is still a good chance it can be approved — you just need to respond to each of the issues identified in the Service’s request promptly and thoroughly.

Follow these steps to increase your chances of approval:

  1. Carefully read and comprehend the RFE to determine the best course of action.
  2. Gather the requested evidence and information, including supporting documents, affidavits, expert opinions or other relevant material to strengthen your case. Be thorough in your research and provide comprehensive, accurate information.
  3. Craft a well-structured and persuasive response. Address each point raised in the RFE and provide detailed explanations or documentation. Use a professional tone and avoid unnecessary or irrelevant information. Highlight the strengths of your case.

In general, stay organized, thorough and focused on addressing the concerns raised.

Partner with BAL for better outcomes 

Hiring foreign national talent can help fill skills gaps and bring specialty knowledge into your workforce, but RFEs can cause major delays, unnecessary stress and additional expenses in the work authorization process.

BAL’s attorneys work diligently to avoid RFEs and ensure a seamless process. Our innovative technology and decades of experience in employment-based immigration law have led to a lower percentage of RFEs than the national average. For example, while 9.6% of H-1B petitions resulted in RFEs for FY 2023, only 5.3% of H-1B petitions filed by BAL received RFEs in the same period.

Contact our team to learn how we can provide a smooth, error-free visa application or petition process.

The Supreme Court hears arguments in a case about U.S. citizens’ rights in visa denials.

U.S. Citizenship and Immigration Services reaches an H-2B cap for returning workers.

And why a small change to the USCIS policy manual could have important consequences for green card applicants.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

The cost of running an immigration program at a U.S. company just went up — a lot.

On Jan. 31, U.S. Citizenship and Immigration Services published a final regulation to raise immigration filing fees — and high-skilled categories saw some of the biggest increases. On April 1, the fee for an H-1B petition increased from $460 to $780 (70%), and the fee for an L-1 intracompany transfer petition increased from $460 to $1,385 (201%). All of that is before a new $600 Asylum Program Fee ($300 for small employers) is added on for each employment-based nonimmigrant or immigrant filing. Analysis from the BAL Government Strategies team shows that a typical small- or medium-sized company may see the amount they spend on filing fees more than double.

None of this is good news.

At the same time, the fee increases present an opportunity for companies to take stock of their immigration programs and reassess whether they are doing everything they can to take advantage of policy improvements that the Biden administration has made.

The fee increases are the first since 2016, and USCIS has said it will put the additional revenue to good use — not only by helping them meet the challenge of expanded humanitarian programs but also by improving processing times and reducing backlogs for employment-based filings. While the business community was clear that it would have liked to see USCIS implement additional efficiencies before raising fees, the administration has shown good faith by working to streamline programs with its current funding level. Consider:

  • Improvements to the H-1B program: Just days after it published the regulation to raise fees, USCIS published a separate regulation to overhaul the H-1B registration and selection process. The big change is a switch from a petitioner- to a beneficiary-centric lottery, so that each H-1B beneficiary may be selected only once, no matter how many registrations are submitted on his or her behalf. This change is designed to eliminate incentives for bad actors to submit multiple H-1B registrations for the same individual — and has the potential to reduce the overall number of registrations and boost the H-1B selection rate. The change enjoys broad support in the business community. So do the introduction of online H-1B filings and a new pilot program that allows some H-1B holders to renew their visas in the U.S. without going abroad.
  • Extended employment authorization: In September 2023, USCIS increased the maximum validity of Employment Authorization Documents (along with Advance Parole travel documents) to five years for employees with pending green card applications. This change did not draw as much attention as the H-1B overhaul but has proved to be a boon to employers. Previously, green card applicants had to renew their employment authorization every two years. The longer validity saves not only time and money but also adds predictability. Improved EAD processing times are an additional benefit.
  • Flexibility in the green card process: With the labor certification process (PERM) becoming increasingly difficult, employers continue to turn toward national interest waivers as a green card strategy. This trend is due in part to the increased difficulty of the PERM process when employers have had layoffs. The administration published new guidance on national interest waivers for EB-2 visas in January 2022 and made EB-2 visas a priority in an executive order on intelligence published last fall. The Department of Labor has also asked for public input on whether to revise its list of Schedule A job classifications that do not require labor certification. This list has not been updated since 2004.
  • Improved visa processing abroad: The U.S. State Department issued more than 10.4 million nonimmigrant visas in the last fiscal year. This figure was nearly a record and the highest total since 2015. It also highlights a marked turnaround in visa processing efficiency at U.S. embassies in consulates following years of reduced staffing and delayed wait times. State Department fees also went up last spring. And while the State Department and USCIS are different agencies with different challenges, the success in improving visa processing abroad is consistent with the Biden administration’s broader overall efforts to improve immigration services.

Understandably, we have heard plenty at BAL from employers frustrated with how dramatically fees increased. What we have not heard, however, is that employers plan on dramatically cutting back their immigration programs. This is good news — and not only because it means companies will continue to recruit top workers to help keep them competitive.

Despite higher fees, there is ample evidence that it is a good idea to invest in foreign workers now, at a time of generally favorable policies. Take the H-1B program as one example. The H-1B registration fee has increased from $10 to $215 for next year’s cap registration, which gave employers an incentive to put eligible employees in the lottery this year if they were able to do so. On top of that, for beneficiaries that were not selected, employers have more favorable options for H-1B alternatives now than they previously did. The administration has added new qualifying fields of study to its STEM Designated Degree Program List, making more recent graduates eligible for extended Optional Practical Training. Officials also provided clarifying guidance on O-1 “extraordinary ability” visa criteria, making this category an increasingly common option.

None of the administration’s immigration programs are ensured to continue under future administrations. In the current political environment, there is no telling how long they will last.

Donald Trump has emerged as the Republican Party’s presumptive nominee for president. Whatever you think of Trump’s politics, it is plainly true that when he was in office, it was harder to recruit and retain high-skilled foreign workers. H-1B denial rates skyrocketed and processing backlogs ballooned at understaffed agencies. COVID-19 only made the problems worse.

Nobody knows what Trump may do if he wins this year’s election, but it certainly seems unlikely he would decrease immigration fees. Employers could be stuck with higher rates for reduced services.

The adage “never let a crisis go to waste” is instructive as employers face higher costs and uncertainty about the future of favorable immigration policies. While no one enjoys paying higher fees, employers should review their immigration strategies to take advantage of easier processes now before it’s too late.

John is a partner and head of BAL’s New York office focused on corporate clients with a range of immigration-specific issues and challenges. This article originally appeared in the most recent edition of Mobility Magazine. 

H-1B registration has closed and petition filing begins next week.

The government opens an H-2B cap for returning workers.

And a look at how employers have been preparing for major USCIS filing fee increases.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

This alert has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.