By Marcus Headman
Founding Partner · June 30, 2026
H-1B Request for Evidence rates rose sharply after the 2023 lottery process changes and haven't come back down. Roughly 1 in 4 cap-subject petitions we track in 2026 receive an RFE. The upside: 87% of RFEs get approved once answered — if the answer directly hits USCIS's concern. These are the eight issues we see most, and the evidence pattern that answers each.
1. Specialty occupation — Bachelor's degree requirement
The RFE says the job description does not clearly require a specific bachelor's degree. Counter-evidence: expert opinion letter tying the job to a defined field (CS, EE, biotech), industry survey data showing peer employers require the same degree, and internal job posting archives showing the same degree consistently required.
2. Employer-employee relationship (contractor placements)
For consulting or staffing arrangements, USCIS wants proof the petitioner controls the employee's work day-to-day. Counter: signed statement of work with named end-client, org chart showing petitioner supervisor, timesheet approval process, benefits enrollment proof.
3. LCA wage level mismatch
USCIS says the Labor Condition Application prevailing wage doesn't match the job's actual complexity. Level I (entry-level) filings for senior positions draw this every time. Fix: file a new LCA at Level II or III with fresh OES data, or explain in detail why the position genuinely is entry-level (rare for engineers past 3 years' experience).
4. Beneficiary qualifications — Degree evaluation
Foreign degrees need a credential evaluation showing U.S. bachelor's equivalence. Common failure: the evaluation cites work experience toward the degree without documenting the 3-for-1 rule (3 years of specialty experience = 1 year of college). Ask the evaluator to spell it out.
5. Maintenance of status
For change-of-status filings (F-1 → H-1B, H-4 → H-1B), USCIS may allege the beneficiary broke status. Counter: I-94 records, F-1 SEVIS transcript, current I-20 with employment authorization confirmed, prior EAD copies. Assemble a complete timeline exhibit — one missing day of documentation invites denial.
6. Third-party placement itinerary
For staffing firms placing at end-clients, USCIS wants an itinerary showing the entire 3-year requested period. Counter: master services agreement with the end-client extending beyond validity, plus signed statements from the end-client project manager confirming duration.
7. Beneficiary already in maxed-out H-1B (recapture)
If the beneficiary has spent time outside the U.S. during prior H-1B validity, that time can be recaptured to extend the 6-year cap. USCIS RFEs on incomplete travel records. Counter: I-94 detail from CBP, passport entry stamps, and a day-by-day spreadsheet of days outside U.S. during each prior H-1B period.
8. AC21 extension eligibility (7th year + )
For H-1B extensions past the 6-year cap under AC21 § 106(a) or § 104(c), USCIS wants proof of pending or approved I-140. Counter: I-140 receipt or approval, PERM approval (if not I-140-based), and confirmation the priority date is not current for adjustment.
If you're staring at an RFE and unsure whether the response you drafted actually hits the issue, our attorneys review RFE drafts for a flat fee. Book a consult with your NOID or RFE PDF attached — the 20-minute call opens with the strongest and weakest paragraph you've written.
