Introduction

The period after the H-1B cap filing season often brings a surge of USCIS Requests for Evidence (RFEs) for newly filed cap-subject H-1B petitions. An RFE is a formal request from USCIS for additional information or documentation before it can decide on the H-1B petition. It’s not a denial, but it does indicate that USCIS needs more proof on certain issues. Especially in recent years of heightened scrutiny, many H-1B petitions have received RFEs shortly after filing.

Understanding how to address these RFEs with a strong response is critical. Not only can a well-prepared RFE response secure the H-1B approval, but it also builds an “administrative record” that could determine the outcome of any future legal challenge. This article explains why robust RFE responses matter and how to approach them, in a way that’s informative for HR professionals and foreign nationals alike.

The Post-Filing Surge in H-1B RFEs

Each year, once the initial H-1B cap petitions are filed (typically in April through June), employers and beneficiaries often see an influx of RFEs. USCIS officers review the thousands of new H-1B petitions and frequently flag cases for more evidence. Multiple factors contribute to this RFE surge: increased scrutiny of H-1B qualifications, evolving policies, internal USCIS deadlines, and sometimes new anti-fraud measures targeting issues like multiple registrations.

This means HR departments and foreign workers should be prepared for the possibility of an RFE as part of the H-1B process—not as an unusual exception. Receiving an RFE doesn’t imply wrongdoing or that the case is doomed. It simply means USCIS needs clarification or proof on specific points. A strong RFE response can turn a tenuous case into an approval, while a weak or incomplete response may all but guarantee a denial. Given the limited cap slots, a denial due to a poor RFE response can be devastating—often there isn’t another chance until the next year’s cycle. Treat every RFE with urgency and diligence.

Common Issues Raised in H-1B RFEs

1. Beneficiary Qualifications: Education and Experience

USCIS may question if the employee has the appropriate educational background or experience for the H-1B position. This often arises when the degree is in a different field or is from a foreign institution. For instance, a software developer with a degree in chemistry may receive an RFE questioning how their education relates to the role.

A strong response will include diplomas, transcripts, credential evaluations, expert opinion letters, and letters from prior employers documenting relevant work experience. If relying on experience to supplement education, a 3-to-1 rule (three years of experience equals one year of academic study) can be used with an expert evaluation.

2. Specialty Occupation: Does the Job Require a Degree?

This is one of the most frequent RFE categories. To qualify as a “specialty occupation,” the job must require at least a bachelor’s degree in a specific field. There are four regulatory prongs, and meeting just one is sufficient.

RFEs often arise when USCIS uses the Occupational Outlook Handbook to argue the position is too general or lacks a specific degree requirement. This happens frequently with jobs labeled “Business Analyst” or “Computer Occupations, All Other.”

Strong responses to this RFE type include detailed job descriptions, job postings for similar roles, expert letters, and industry documentation showing the role requires a degree in a particular field. More details can be found on our blog here and here.

3. Maintenance of Status: F-1 Students on OPT/STEM OPT or CPT

Students transitioning from F-1 to H-1B must show they maintained valid status throughout their time in the U.S. RFEs often focus on cases involving CPT or STEM OPT extensions. “Day 1 CPT” programs, or questionable gaps between work and study, can trigger concerns.

To respond, provide academic transcripts, I-20s, EAD cards, employer verification letters, and a clear timeline. Any CPT usage should be documented as part of the curriculum and authorized by the school. For OPT and STEM OPT, you want to document how the training related to your degree. For STEM OPT, you will need to document how your training complied with the I-983 training plan and other STEM OPT compliance requirements. 

Strong RFE Responses Build a Winning Administrative Record

It’s tempting to treat an RFE as a paperwork chore, but it’s far more than that—it’s your one chance to create a full and convincing administrative record. If USCIS denies the case, and you pursue litigation, the judge can only consider what is already in the record. No new evidence can be introduced in court.

Think of your RFE response as speaking to two audiences: the USCIS adjudicator now, and a potential federal judge later. If your case ends up in court, your RFE response becomes the foundation for legal arguments. If USCIS ignored evidence or misunderstood facts, a strong record gives your litigation team the ammunition to prove it.

Be methodical. Respond to each issue raised. Organize your documents clearly. Many RFE responses benefit from a cover letter or table of contents that walks the adjudicator through the submission. For example:

• Issue 1: Qualifications – resume, degree, transcript, evaluation.
• Issue 2: Specialty Occupation – job description, expert letter, job postings.
• Issue 3: Maintenance of Status – transcripts, I-20s, OPT EAD, DSO letter.

The clearer your documentation and explanations, the easier it is for USCIS—and any court—to see that your case meets all legal requirements.

Why the Administrative Record Matters in Court

If your H-1B petition is denied, you may have the right to challenge that denial in federal court under the Administrative Procedure Act (APA). The APA is a federal law that allows individuals or businesses to sue government agencies when their actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

In recent years, APA litigation has become a powerful tool to reverse unjust H-1B denials. But here’s the catch: the court can only review what’s in the administrative record. That generally means your original petition, the RFE, your response, and USCIS’s final decision. Generally, new evidence can be added during litigation.

So if you didn’t include critical proof in your RFE response—such as an expert opinion or proof of prior experience—it’s too late to introduce it later. Judges will review your case through the lens of what USCIS had in front of them at the time. A thin RFE response can doom your lawsuit before it even begins.

Conversely, if your response is thorough, clear, and supported by detailed documentation, it gives your legal team a strong platform to argue that USCIS made a mistake. In fact, many successful H-1B lawsuits were won because employers had submitted expert letters or industry data that USCIS simply ignored. Courts don’t look kindly on agencies that fail to explain why they disregarded credible evidence.

Even if you hope never to set foot in a courtroom, building a strong RFE response creates leverage. Agencies are more likely to approve a case—or reconsider a denial—if they know the record could hold up in court. The best time to prepare for possible litigation is when you’re writing the RFE response.

Using Expert Opinion Letters to Bolster Your RFE Response

Expert opinion letters are one of the most effective tools for addressing RFEs. These are written by independent academics or professionals in the field, and they provide a neutral, authoritative voice to support your claims.

How Experts Help:

• For Beneficiary Qualifications: An expert can evaluate foreign degrees, convert work experience to academic equivalence, or explain how a nontraditional background still meets H-1B requirements.
• For Specialty Occupation: Experts can describe how the job duties require specialized knowledge, and that only someone with a relevant bachelor’s degree could perform the role. They often cite industry standards or their own professional experience.

For USCIS to give weight to an expert letter, the expert must establish their qualifications and explain their reasoning in detail—not just make conclusory statements. A well-drafted expert letter tailored to the job and the individual can be a deciding factor in whether an RFE is overcome.

Expert letters are also powerful in litigation. Courts often view expert opinions as persuasive, especially when USCIS fails to rebut or address them meaningfully. If USCIS denies the case without acknowledging a solid expert report, that decision may not withstand APA scrutiny in federal court.

Don’t Treat RFEs as Routine – Get Experienced Help

An RFE is not something to handle lightly. It is a legal challenge to your petition and deserves a legal response. Sometimes petitioners respond on their own or with minimal guidance, thinking the RFE just needs a few documents. But immigration law is complex, and the wrong response—or an incomplete one—can lead to denial.

Experienced immigration attorneys understand the patterns in RFEs, the evidence that satisfies adjudicators, and how to build a record that will hold up in court if necessary. They know what expert letters are most useful, how to organize evidence, and how to respond persuasively to legal issues. Moreover, they track trends and know how to adapt to the current immigration climate.

They can also prevent you from accidentally raising new concerns through poorly worded or unsupported documents. They know how to strike the right tone, structure the response effectively, and ensure that nothing is missed.

With a strong attorney-prepared response, you increase your chances of approval now and greatly improve your position if you later challenge a denial. A polished, professional RFE response signals to USCIS that you are prepared—and that if the case is denied, you are ready to fight back.

Conclusion

RFEs are an increasingly common aspect of the H-1B process, especially in a climate of closer scrutiny by immigration authorities. They may arrive unexpectedly, but with the right approach, they can be successfully addressed.

The key takeaways for any HR professional or H-1B hopeful facing an RFE are: respond with substance, respond with strategy, and respond with support from experts. A strong RFE response not only improves the odds of securing that valuable H-1B approval, but also lays the groundwork for any future fight if USCIS doesn’t give a fair result.

Remember that the RFE response is your voice in the petition’s life cycle – it’s where you clarify, justify, and solidify your case. Use that voice confidently by providing detailed information and documentation. Don’t shy away from over-demonstrating why the job is a specialty occupation or why the candidate is qualified; there’s no such thing as too much relevant evidence. Where appropriate, bring in an expert’s voice to amplify your own.

Lastly, know that you don’t have to navigate this alone. The complexity of H-1B RFEs – from interpreting regulatory criteria to compiling evidence – means that seasoned immigration attorneys can be your best allies. What might be a “routine” RFE to a law firm is likely a new and unique challenge to a company or individual; leverage that experience in your favor.

A well-handled RFE can turn a precarious case into an approval and save you the headache of starting over or resorting to litigation. And if a denial does occur, a thoroughly prepared RFE response ensures you have a fighting chance to overturn it.

In the world of H-1Bs, preparation and precision are everything. By treating RFE responses with the importance they deserve—writing them strongly, backing them with solid documentation, and getting the right people involved—you greatly increase the likelihood that your H-1B petition will cross the finish line successfully.

A strong RFE response today is an investment in your petition’s ultimate success. Don’t give anything less than your best effort—and whenever in doubt, seek experienced counsel to guide you through this critical phase of the H-1B journey.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business immigration community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.