H1B Denial vs RFE: What’s Worse and How to Prepare

What You’ll Learn

In this article, we’ll delve into the critical distinctions between H1B Denial and Request for Evidence (RFE), their implications for applicants and employers, procedural differences, response strategies, and long-term consequences. By the end, you’ll be equipped to navigate these challenges effectively.

Quick Comparison Table

Overview of H1B Denial

An H1B Denial signifies that the U.S. Citizenship and Immigration Services (USCIS) has definitively rejected an applicant’s petition for an H1B visa. This outcome often results from fundamental issues such as ineligibility or insufficient evidence, leading to the need for reapplication or appeal.

Pros

– **Clear Outcome**: Provides a definitive decision, allowing applicants to understand their current status.

– **Opportunity for Appeal**: Applicants can challenge the denial through legal means, potentially overturning the decision.

Cons

– **Time-Consuming Process**: Appealing an H1B denial involves legal procedures that can be time-consuming and complex.

– **Financial Implications**: Legal fees and the cost of reapplying can be substantial.

– **Uncertainty**: There’s no guarantee that an appeal will be successful, leading to prolonged uncertainty.

Overview of RFE

A Request for Evidence (RFE) is issued by USCIS when they require additional information or clarification to make a decision on a petition. Receiving an RFE indicates that the petition is under further review and can often be resolved by providing the requested information.

Pros

– **Opportunity to Address Concerns**: Applicants can provide additional evidence to satisfy USCIS requirements.

– **Higher Approval Chances**: The likelihood of approval after an RFE is generally higher compared to after a denial, as RFEs indicate that the petition is still under consideration.

Cons

– **Time Constraints**: RFEs typically require a prompt response, often within 30 to 90 days.

– **Potential for Denial**: Failure to respond adequately can lead to a denial.

– **Additional Documentation**: Gathering and submitting the required evidence can be burdensome.

Side-by-Side Breakdown

Definition

– **H1B Denial**: A final rejection of the H1B visa petition by USCIS.

– **RFE**: A request from USCIS for additional information or clarification before making a decision.

Implications

– **H1B Denial**: Requires reapplication or legal action to overturn the decision.

– **RFE**: Provides an opportunity to address specific concerns and potentially secure approval.

Response Time

– **H1B Denial**: Time-sensitive; requires prompt legal action or reapplication.

– **RFE**: Time-sensitive; requires prompt and comprehensive response to the RFE.

Likelihood of Approval

– **H1B Denial**: Generally lower; may require significant effort to overturn the decision.

– **RFE**: Generally higher; petition is still under consideration.

Applicant’s Next Steps

– **H1B Denial**: Consider reapplying, appealing the decision, or seeking legal counsel.

– **RFE**: Gather and submit the requested evidence within the specified timeframe.

Which One Should You Choose?

Deciding between an H1B Denial and an RFE isn’t a choice applicants make; it’s a matter of response strategy.

– **If You Receive an RFE**: View it as an opportunity to provide additional evidence and clarify any issues. Respond promptly and thoroughly to increase your chances of approval.

– **If You Face a Denial**: Consult with an immigration attorney to explore options such as appealing the decision or reapplying in the next cycle.

H1B Denial vs RFE: The Final Verdict

| Category | H1B Denial | RFE |
|————————–|————|—–|
| Best for Applicants | Applicants seeking to understand the finality and consequences of an H1B visa denial, and the steps to take post-denial. | Applicants who have received an RFE and need guidance on how to respond effectively to secure approval. |
| Best for Employers | Employers needing to understand the implications of an H1B denial on their workforce and how to navigate the appeal process. | Employers seeking to assist employees in responding to RFEs and ensuring timely and accurate submissions. |
| Best Value | Applicants and employers who prefer a definitive decision and are prepared to engage in the appeal process. | Applicants and employers who can provide the necessary documentation promptly to address USCIS concerns. |

Findings and Recap

Understanding the distinctions between H1B Denial and RFE is crucial for applicants and employers navigating the H1B visa process. While an RFE offers a chance to address specific concerns, a denial signifies a final rejection, often requiring reapplication or legal action. Responding to an RFE promptly and thoroughly can significantly enhance the likelihood of approval.

Related reading: Understanding the H1B Visa Process: A Step-by-Step GuideAMP

AI Image Prompt: A split-screen image depicting a person reviewing an H1B Denial notice on one side and preparing a response to an RFE on the other, symbolizing the decision-making process in the H1B visa journey.

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Frequently Asked Questions

What is the main difference between H1B Denial and RFE?

An H1B Denial is a final decision by USCIS indicating that the petition does not meet the necessary criteria for approval. In contrast, a Request for Evidence (RFE) is a request from USCIS for additional documentation or clarification to make a decision on the petition. Receiving an RFE does not equate to a denial; it provides an opportunity to address specific concerns raised by USCIS. ([litwinlaw.com](https://litwinlaw.com/blog/2022/06/h1b-request-for-evidence/?utm_source=openai))

What are common reasons for receiving an H1B RFE?

Common reasons for an H1B RFE include:

• Insufficient evidence that the position qualifies as a specialty occupation.
• Lack of proof of a valid employer-employee relationship.
• Inadequate documentation of the beneficiary’s qualifications, such as educational credentials or work experience.
• Discrepancies in the employer’s information, such as address or financial details, as compared to the USCIS’s Validation Instrument for Business Enterprises (VIBE) system. ([szetolaw.com](https://www.szetolaw.com/content/common-reasons-requests-further-evidence-or-denial-h-1b-cases?utm_source=openai))

How should I respond to an H1B RFE?

To respond effectively to an H1B RFE:

• Carefully review the RFE notice to understand the specific information or documents requested.
• Gather and organize all requested evidence, ensuring it is complete and accurate.
• Submit the response within the specified timeframe, typically between 30 and 90 days, to avoid potential denial. ([nnuimmigration.com](https://www.nnuimmigration.com/h1b-rfe/?utm_source=openai))

What are the chances of H1B approval after receiving an RFE?

The approval rate for H1B petitions after receiving an RFE varies. For instance, in Fiscal Year 2023, the approval rate was 79.8%, indicating a favorable outcome for many applicants who respond thoroughly to the RFE. ([goelite.com](https://goelite.com/h1b?utm_source=openai))

Can an H1B petition be denied without an RFE?

Yes, an H1B petition can be denied without an RFE if USCIS determines that the petition lacks sufficient initial evidence to establish eligibility. This underscores the importance of submitting a complete and accurate application from the outset. ([h1b.io](https://h1b.io/blog/new-h1b-policy-uscis-petition-denials-possible/?utm_source=openai))

What are the options if my H1B petition is denied?

If your H1B petition is denied, you have several options:

• File a motion to reopen or reconsider the decision, providing new facts or demonstrating that the decision was based on an incorrect application of law or policy. ([gcaimmigration.com](https://gcaimmigration.com/how-to-handle-h-1b-rfes-and-denials/?utm_source=openai))
• File an appeal to the Administrative Appeals Office (AAO) for a different authority to review the decision. ([gcaimmigration.com](https://gcaimmigration.com/how-to-handle-h-1b-rfes-and-denials/?utm_source=openai))
• Consider federal litigation by filing a lawsuit in federal court to challenge the denial. ([gcaimmigration.com](https://gcaimmigration.com/how-to-handle-h-1b-rfes-and-denials/?utm_source=openai))

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