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FOREIGN STUDENTS NOT SELECTED IN H1B CAP LOTTERY STILL HAVE OPTIONS

 

In recent years, the U.S. Citizenship and Immigration Services (USCIS) has implemented a program whereby a randomized lottery determines which applicants will be eligible for H1B cap petitions. The initial selection process for fiscal year 2022 has now come to an end. If your name was not selected in this lottery, what can you do?

Why am I receiving an RFE for my H-1B visa petition?

You worked with your boss to submit your H-1B employment visa petition. A couple months have gone by, and now – instead of receiving your H-1B approval – the United States Citizenship and Immigration Services (USCIS) has sent you something called an RFE.

Why have you received this, and is it cause for concern?

What is an RFE?

A Request for Evidence (RFE) is a request by the USCIS for supplemental information to determine whether your H-1B petition should be accepted. Receiving an RFE does not mean that your visa petition has been denied; it simply means that further information is required to assess whether you meet the necessary eligibility criteria.

When does the USCIS issue RFEs?

There are a variety of circumstances under which the USCIS may send an RFE for your H-1B petition. Here are the most common reasons:

  1. Specialty occupation status: Your H-1B petition did not provide enough evidence to prove that your work satisfies the eligibility criteria of “specialty occupation.”
  2. Employer-employee relationship: Your employer’s H-1B petition did not adequately establish that they are your employer – with the power to manage, hire and fire you.
  3. Sufficient work: The visa petition did not demonstrate that your employer had sufficient work to occupy you for the entire duration of your visa.
  4. Applicant qualification: The visa petition failed to prove that you are qualified to carry out work in the designated specialty occupation.
  5. Status maintenance: Your employer did not adequately demonstrate that you have properly maintained your current status.
  6. Issues with LCA: Your employer either failed to demonstrate that they completed the appropriate Labor Certification Application (LCA), or they failed to appropriately link this LCA to your position.
  7. Six-year limit: The petition indicates that you have already hit your six-year H-1B limit, and it did not provide evidence that you are eligible for the H-1B extension or AC21 benefits.
  8. Multiple work locations: Your employment involves working or training in multiple locations, and your employer failed to submit an itinerary detailing the location and schedule of services that you will perform at each site.
  9. Missing fees: Your employer did not establish that they had paid all of the requisite filing fees.

Navigating the H-1B visa application process is complex. Any number of seemingly minor missteps can lead to delays or denials. This is one reason that working with a legal professional who understands the ins and outs of the U.S. immigration process can be so beneficial.

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