The 5 Most Common H-1B RFE Triggers and How to Prevent Them

USCIS issued 33,393 Requests for Evidence (RFEs) in H-1B adjudications in fiscal year 2024, representing 8% of the 407,625 H-1B petitions completed that year^[1]. Initial employment petitions carried a 13% RFE rate, while continuing employment petitions had a 6% rate^[1]. Five regulatory triggers account for most of these RFEs, each tied to specific requirements at 8 CFR 214.2(h) and 20 CFR 655.

1. Specialty occupation

The most common H-1B RFE reason in FY 2018 was failure to establish that the position qualifies as a specialty occupation^[2]. Under 8 CFR 214.2(h)(4)(iii)(A), a position must satisfy at least one of four criteria showing it requires at least a bachelor's degree in a specific specialty^[3]. USCIS challenges roles where the job duties don't appear complex enough to require a bachelor's degree or the equivalent^[2].

The H-1B modernization rule, effective January 17, 2025, raised the bar. Every qualifying criterion must now show a direct relationship between the required degree field and the position's duties^[1]. USCIS clarified that an employer "normally" requiring a degree doesn't mean the employer must "always" require one, so a petition can list more than one acceptable degree field as long as each field is directly related to the job^[1].

How to prevent it: Provide a detailed, duty-by-duty job description that ties each core responsibility to the specific degree field or fields required^[1]. USCIS recommends that employers provide a list of duties, roles, responsibilities, and educational and experience requirements necessary to perform the job, with a link between the work to be performed and the educational requirements for the position^[2].

2. Employer-employee relationship and bona fide job offer

USCIS issues RFEs to petitioning employers that fail to establish that they have a valid employer-employee relationship with the H-1B beneficiary^[2]. An employer must demonstrate that it will maintain the right to control the H-1B beneficiary's work for the duration of the requested period of employment^[2]. This is particularly important when the H-1B beneficiary will be placed at a third-party worksite^[2].

The 2025 modernization rule removed "employer-employee relationship" from the regulatory definition of "U.S. employer"^[1]. It replaced it with a requirement that the petitioner have a bona fide job offer for the beneficiary as of the requested start date^[1][4]. Under 8 CFR 214.2(h)(4)(iv)(C), USCIS may request contracts, work orders or other similar evidence between all parties showing the bona fide nature of the beneficiary's position and the minimum educational requirements to perform the duties^[3][4].

How to prevent it: Provide signed client contracts or statements of work, detailed work assignments and deliverables, plus evidence that the placement calls for specialty-occupation-level work^[1]. An employer may submit copies of the employment contract and offer letter detailing the terms and conditions of the employment as proof of the valid employer-employee relationship^[2]. If contracts don't provide that level of detail or confidentiality provisions prevent it, petitioners could provide end-client letters or similar evidence^[4].

3. Availability of work at third-party sites

USCIS issues RFEs to petitioning employers that fail to establish that the H-1B beneficiary, working at a third-party worksite, would be engaged in specific, non-speculative work assignments in a specialty occupation for the requested period of employment^[2]. Under 8 CFR 214.2(h)(4)(iv)(C), USCIS may request contracts or work orders showing the bona fide nature of the beneficiary's position^[3].

How to prevent it: Submit specific work assignments with start and end dates, detailed project scopes and evidence that the work assignments cover the requested period. Vague or open-ended work descriptions trigger this RFE. USCIS may request contracts, work orders or similar evidence between all parties to show the bona fide nature of the position^[4].

4. Beneficiary qualifications

USCIS issues RFEs to petitioning employers that fail to establish that the H-1B beneficiary is qualified to perform services in a specialty occupation^[2]. Under 8 CFR 214.2(h)(4)(iv)(A), documentation must establish that the beneficiary is qualified to perform services in a specialty occupation^[3]. An employer must prove that the H-1B beneficiary has the required credentials, generally at least a bachelor's degree in the specialty field or sufficient training, experience or licensure^[2].

USCIS tends to scrutinize combination evaluations that credit work experience toward a degree equivalency more closely than single-source degree evaluations^[1]. This RFE often comes up when an employee's degree isn't a direct match for the occupation^[1].

How to prevent it: Include a credential evaluation from the start if the beneficiary's degree is from outside the United States or if the degree field doesn't directly match the position. If the H-1B beneficiary does not have a bachelor's degree in the specialty field, an employer may consider getting a combined education and experience evaluation for a related field of study^[2]. USCIS suggests that employers include a statement explaining how the unrelated degree relates to the job offered^[2].

5. LCA wage level and SOC code correspondence

The Labor Condition Application must properly correspond with the position offered to the H-1B beneficiary, specifically the job title and wage level selected by the employer^[2]. Under 8 CFR 214.2(h)(8)(iii)(A)(4), an H-1B petition must contain and be supported by the same position information, including SOC code, provided in the selected registration and indicated on the labor condition application, and must include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the area of intended employment^[3].

Under 20 CFR 655, the LCA attests that the employer will pay at least the higher of the actual wage or the prevailing wage^[5]. The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question^[5]. The prevailing wage must be determined as of the time of filing the application^[5].

How to prevent it: Confirm that the job title, SOC code, wage level and area of employment on the LCA match the petition exactly before filing. USCIS suggests that employers provide a detailed description of the skills, education and experience required to perform the job^[2]. Petitioners must submit evidence of the basis of the wage level selected on the registration as of the date that the registration was submitted^[3].

What to do next

HR teams can reduce H-1B RFE risk by addressing these five triggers in every initial filing. Draft job descriptions that tie duties to specific degree fields. Secure signed work agreements for third-party placements. Obtain credential evaluations before filing. Double-check LCA correspondence. Confirm the proffered wage meets both the actual wage and prevailing wage requirements at 20 CFR 655.

USCIS determines whether the labor condition application involves a specialty occupation and properly corresponds with the petition, and whether all other eligibility requirements have been met^[3]. When an RFE does arrive, you typically have 87 days to respond. Gale's flat fee for an H-1B petition is $999, and RFE responses are usually included in that price^[6]. An attorney reviews every case before filing to flag potential RFE triggers early. See the H-1B visa page for eligibility details, or read more about what an RFE is and specialty occupation requirements in the glossary.

This article is for general information only and isn't legal advice. Immigration rules change frequently; speak with an attorney about your specific situation. Read how we research, fact-check and approve articles in our editorial policy.