Request
for Evidence for H-1B’s – Can you Avoid
Them?
When you put in an application for an H-1B visa,
you often get what is known as a ‘kickback’
or Request for Evidence (RFE) from the Immigration
and Naturalization Service (INS). These cannot always
be avoided as the INS does sometimes need more information
on the case than has been given. However, very often
it is small slip-ups on the part of the person filing
the case that lead to these ‘kickbacks’.
Given below are some suggestions that may be used
to help minimize these Requests for Evidence. Some
of them may sound very simple and obvious but it is
surprising how many simple mistakes are made.
1) Ensure that the form is completely and correctly
filled out. (A small typing error can give a wrong
answer and result in a kickback.)
2) The Labor Condition Application (LCA) must be
certified by the Department of Labor and approved
prior to filing. (The LCA may be filed and approved
online now.)
3) If a blanket Labor Condition Application (LCA)
is being used, please be sure to list the names of
all the other persons included on this LCA.
4) The Petitioner should write a detailed letter
describing
a) the activities and financial status of the firm,
b) the nature of the position offered,
c) the qualifications and experience of the beneficiary,
d) why the company thinks this person will benefit
them,
e) a detailed job description outlining the duties
of the beneficiary showing that the position is a
‘Specialty Occupation’ and requires a
Bachelor’s degree,
f) whether it is a part-time or full-time job and
the number of hours per week that the person will
put in.
5) It is also important to provide evidence from
alternate sources to show that the position is a ‘Speciality
Occupation’. This can be done in several ways
– some of which are given below.
a) Show a reference from the Occupational Outlook
Handbook and the specific training requirements for
the position offered,
b) Show proof of other advertisements to show that
a Bachelor’s degree is the industry standard
for this or similar positions,
c) Show a reference from the ‘Job Zone’
from the OES.
6) Provide a credential evaluation from a recognized
and established credential evaluation service, showing
that the qualifications of the beneficiary are equivalent
to a relevant degree from an accredited college or
university in the United States.
7) If the beneficiary does not have a degree, and
his/her eligibility for an H-1B is being based on
his/her experience, get an educational evaluation
done based on his/her experience and include all details
such as references, work experience letters, memberships
in professional organizations and a detailed resume.
Include copies of these papers along with the application.
8) If the particular position requires a license
or registration for the job (e.g. nurses), be sure
to provide a copy of his/her current license or proof
of eligibility for licensure. If the beneficiary does
not have his/her own license, but will be working
under the licensure of another professional, please
include a copy of that person’s license.
9) The viability of the Petitioner may be shown be
shown by including, but not being limited to:
a) Copies of Articles of Incorporation
b) Company Brochures describing products and services
c) Print outs from the Company’s website
d) Copies of Financial Statements
e) Copies of Tax Returns
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