Understanding OPT and H-1B RFEs: Causes, Consequences, and How to Respond

The Optional Practical Training (OPT) and H-1B visa programs play a crucial role in enabling international students and professionals to work in the United States. However, Requests for Evidence (RFEs) issued by the United States Citizenship and Immigration Services (USCIS) can complicate this process. Understanding the causes of RFEs, their impact, and effective ways to respond can make a significant difference in a student's or employee’s immigration journey.

What is an RFE?

An RFE is a formal request from USCIS for additional information or documentation to support a pending immigration application or petition. RFEs are common in applications for OPT employment authorization and H-1B visa petitions. Rather than denying an application outright, USCIS gives applicants an opportunity to address any deficiencies or ambiguities in their submissions.

Common Reasons for OPT RFEs

1. Employer-Employee Relationship: USCIS may request evidence that the student’s employment is directly related to their field of study. This often requires job descriptions, offer letters, and employer support letters.

2. Maintenance of Status: Proof that the student maintained their F-1 status throughout their program of study is required. This includes copies of I-20 forms, transcripts, and proof of class attendance.

3. Unclear Job Role or Duties: If the job description is too vague or does not clearly align with the student’s academic field, USCIS may request more clarification.

4. Training Plan Issues for STEM OPT: For students on the STEM OPT extension, the Form I-983 training plan must clearly outline how the position provides training and development in the student’s field of study.

Common Reasons for H-1B RFEs

1. Specialty Occupation Classification: USCIS may question whether the job qualifies as a “specialty occupation,” which requires a bachelor’s degree or higher in a specific field.

2. Employer-Employee Relationship: If there is doubt about the control the employer has over the employee's work (common in third-party placement situations), USCIS may request evidence to prove this relationship.

3. Beneficiary’s Qualifications: USCIS might request proof that the beneficiary’s education, skills, and experience meet the requirements of the position.

4. Wage Level Issues: If the offered wage appears to be below the industry standard for the position, an RFE may be issued.

Impact of an RFE

An RFE does not mean a denial is imminent. It simply means that USCIS needs more information before making a decision. However, RFEs can delay the overall processing timeline, which may affect employment start dates for OPT or H-1B visa holders. For students relying on OPT to bridge the gap before obtaining an H-1B, this delay can be especially stressful.

How to Respond to an RFE

1. Review the RFE Notice Carefully: The RFE will list specific information USCIS needs. Each point should be addressed thoroughly and clearly.

2. Gather Supporting Documents: This could include employment letters, training plans (for STEM OPT), payroll records, educational credentials, and proof of employer-employee relationships.

3. Work with Your DSO or Immigration Attorney: If you’re on OPT, your Designated School Official (DSO) can provide guidance. For H-1B petitions, an experienced immigration attorney can help craft a compelling response.

4. Respond on Time: RFEs come with a strict deadline. Missing this deadline could result in the denial of your application or petition.

How to Prevent RFEs

1. Submit a Complete and Accurate Application: Ensure all required forms and documents are submitted with the initial application.

2. Provide Clear Job Descriptions and Training Plans: Avoid ambiguity in job roles, especially for STEM OPT training plans and H-1B specialty occupation claims.

3. Maintain Proper Status Documentation: Keep copies of I-20s, pay stubs, transcripts, and other documentation that can demonstrate you’ve maintained your F-1 status.

Final Thoughts

RFEs are a common part of the OPT and H-1B application processes, but they do not necessarily mean your case is in jeopardy. By understanding the common causes of RFEs and preparing a thorough response, applicants can significantly improve their chances of approval. Working closely with DSOs, employers, and immigration attorneys can provide the support needed to navigate this complex process successfully.