How to Respond to an H-1B RFE (Request for Evidence)

USCIS approves over 94% of H-1B petitions. But when an adjudicator has questions or identifies gaps in the filing, the agency issues a Request for Evidence — a formal notice requiring additional documentation before it will make a decision.

An RFE is not a denial. It is a written request under 8 CFR 103.2(b)(8) asking the petitioning employer to submit evidence addressing specific deficiencies in the petition. The employer gets one opportunity to respond. If the response does not satisfy the adjudicator’s concerns, the petition gets denied.

That single response is why RFEs require precision. The employer must identify exactly what USCIS is questioning, assemble evidence that directly addresses each issue, and submit a complete response within the deadline stated on the notice.

What Triggers an H-1B RFE

USCIS issues RFEs when a petition does not contain sufficient evidence to establish eligibility. Under 8 CFR 214.2(h)(4)(iii)(A), an H-1B petition must demonstrate that the position qualifies as a specialty occupation and that the beneficiary is qualified to fill it.

The most common RFE categories for H-1B petitions fall into predictable patterns.

Specialty Occupation

This is the most frequent RFE category. USCIS questions whether the position requires a bachelor’s degree or higher in a specific field directly related to the job duties. A position described in vague or overly broad terms — or one where the job duties could be performed by someone with a general business degree — invites this RFE.

The H-1B Modernization Rule effective January 17, 2025 clarified that “normally” does not mean “always” within the specialty occupation criteria. But adjudicators still scrutinize whether the position has a direct and specific relationship between the required degree field and the job duties described in the petition.

Employer-Employee Relationship

Employers placing H-1B workers at third-party worksites face heightened scrutiny. USCIS looks for evidence that the petitioning employer maintains the right to control when, where, and how the beneficiary performs the work — not just the right to assign them to a client project.

Under the January 2025 modernization rule, when an H-1B worker will be staffed to a third party, the work performed for that third party must itself qualify as a specialty occupation. The requirements of the third-party organization — not the petitioner — are most relevant for determining whether the position meets the specialty occupation standard.

Even though demonstrating the ability to pay the H-1B wage is not an explicit requirement for H-1B petitions, USCIS frequently raises it in this context, questioning whether a bona fide job offer exists if the employer has not shown it can pay the offered wage.

Wage Level and LCA Consistency

An RFE in this category typically means the wage level on the Labor Condition Application does not align with the complexity of the duties described in the petition. A Level 1 wage paired with senior-level responsibilities signals a contradiction that USCIS will flag.

The wage on the LCA must correspond to the actual complexity, supervision level, and experience requirements of the position as described in the petition. Misalignment between these elements is one of the more preventable RFE triggers.

Beneficiary Qualifications

USCIS may question whether the beneficiary’s degree is directly related to the specialty occupation. This is common when the beneficiary holds a degree in a broad field — such as general business administration — and the petition is for a position requiring specialized technical knowledge.

When the beneficiary relies on a combination of education and work experience to meet the degree requirement, USCIS typically requests a credential evaluation demonstrating equivalency under 8 CFR 214.2(h)(4)(iii)(D).

How to Read an RFE Notice

Every RFE notice contains several components: the response deadline, the specific evidence USCIS found insufficient, a list of evidence already submitted with the petition, a discussion of the rules and requirements that apply in each issue it raises, and the mailing address for the response.

Start by comparing the evidence USCIS lists as already received against what was actually filed. In some cases, USCIS overlooks documents that were included in the original submission. When that happens, the employer should resubmit the document with a cover letter noting it was part of the original filing.

Each deficiency identified in the RFE must be addressed individually. USCIS expects a point-by-point response — not a general narrative about the position or the company. Every item the RFE identifies as missing or insufficient needs corresponding evidence in the response.

Response Deadlines and Procedures

The standard response period for an H-1B RFE is 84 days (12 weeks) from the date USCIS issues the notice. Under 8 CFR 103.2(b)(8), USCIS cannot grant extensions beyond the 12-week maximum.

When the RFE is served by mail, 8 CFR 103.8(b) provides an additional three days. For respondents outside the United States, USCIS policy provides 14 additional days for mailing time.

The RFE notice will state the exact deadline. The response must be received by USCIS — not postmarked — by that date. Missing the deadline allows USCIS to deny the petition based on the existing record or treat it as abandoned.

Employers may submit only one response. USCIS adjudicates based on the first response packet it receives. Partial responses followed by supplemental filings are not permitted.

What a Strong RFE Response Includes

For Specialty Occupation RFEs

The response must demonstrate that the position requires the theoretical and practical application of a body of highly specialized knowledge and that a bachelor’s degree or higher in a specific specialty is the minimum requirement for entry into the occupation. Under INA Section 214(i)(1), employers should provide:

A detailed job description breaking down specific duties, the percentage of time allocated to each, and the specialized knowledge each duty requires. Generic task lists that could apply to multiple unrelated positions weaken the petition.

An expert opinion letter from a professor or industry authority explaining why the position requires a degree in a specific field. The letter should address the specific duties described in the petition — not specialty occupations generally.

Evidence that the industry standard for this position requires a specific degree. Job postings from comparable employers requiring the same degree field, Department of Labor Occupational Outlook Handbook data, and industry publications all support this element.

Not every RFE raising the specialty occupation issue will require all of these examples. The right combination of evidence depends on the specific facts of each case and the particular deficiencies USCIS identified in the notice.

For Employer-Employee Relationship RFEs

Evidence should demonstrate that the petitioning employer controls the beneficiary’s work — including assignment of projects, setting of work hours, provision of tools and resources, evaluation of performance, and authority to hire and terminate.

Organizational charts can sometimes be helpful in showing the employer’s supervisory relationship to the beneficiary. If ability to pay the offered wage comes up, as described above, relevant evidence can include financial statements, tax returns, sales reports, client contracts, or evidence of outside funding.

For Wage Level RFEs

The response must explain why the selected wage level accurately reflects the position’s complexity. If the position requires independent judgment, years of experience, or supervisory responsibilities, the wage level should reflect that. Employers should reference the DOL OEWS wage data for the specific Standard Occupational Classification code and geographic area to demonstrate alignment.

For Beneficiary Qualification RFEs

When the beneficiary’s degree field does not precisely match the specialty occupation, the response should include a detailed credential evaluation from a qualified evaluator explaining how the beneficiary’s education — combined with relevant coursework or work experience — meets the degree requirement.

For beneficiaries relying on the three-for-one equivalency (three years of progressively responsible experience for each year of required education), detailed letters from prior employers describing specific duties, the specialized knowledge applied, and dates of employment are essential.

What Happens After the Response

USCIS has 15 business days to take action after receiving an RFE response on a petition filed with premium processing. If the petition was not filed under premium processing, there is no guaranteed adjudication timeline after the response is submitted.

The possible outcomes after USCIS reviews the response are approval, denial, or in rare cases, a second RFE or a Notice of Intent to Deny. A NOID is more serious than an RFE — it indicates the adjudicator has identified grounds for denial and is providing the employer an opportunity to respond before issuing a final decision.

If USCIS denies the petition after the RFE response, the employer may file a motion to reopen or reconsider under 8 CFR 103.5, or file an appeal with the Administrative Appeals Office.

Premium Processing and RFEs

When a petition is filed with premium processing on Form I-907, USCIS guarantees adjudicative action within 15 business days. But an RFE counts as adjudicative action. Issuing the RFE satisfies the 15-day commitment, and the clock resets.

Once the employer submits the RFE response, a new 15-business-day period begins. A petition filed under premium processing that triggers an RFE can still take months to resolve, depending on the complexity of the response and the time the employer takes to compile evidence.

Premium processing does not reduce the likelihood of receiving an RFE. It accelerates the timeline for USCIS to review the petition and identify deficiencies — which means employers receive RFEs faster, not fewer.

How Employers Reduce RFE Risk Before Filing

The most effective way to handle an RFE is to prevent it. Employers who treat the initial petition as the only opportunity to establish eligibility file stronger petitions.

Aligning the job description, wage level, SOC code, and LCA before filing eliminates the most common inconsistencies that trigger RFEs. A position described as requiring five years of experience and independent judgment should not be filed at a Level 1 wage.

Including an expert opinion letter with the initial petition — rather than waiting for an RFE to request one — addresses specialty occupation questions before they arise. The same applies to detailed organizational charts, client contracts for third-party placements, and credential evaluations for beneficiaries with non-traditional academic backgrounds.

Employers filing petitions for positions at third-party worksites should include all contracts, work orders, and end-client confirmation letters in the initial filing. The January 2025 modernization rule codified USCIS authority to conduct site visits, and insufficient documentation about the actual worksite increases both RFE risk and the probability of an on-site inspection.

Received an H-1B RFE or preparing a petition and want to minimize the risk of one?

De Wit Immigration Law handles H-1B petitions for employers nationwide — from initial filing strategy through RFE response preparation. Contact our H-1B visa lawyers to discuss the petition or review the RFE notice.

Related Resources:

• Can You Switch Employers on an H-1B Visa? Yes — Here’s How
• Top U.S. Work Visas and Employment-Based Green Cards Employers Should Know
• Immigration Services for Employers