FAQ

RFE (Request for Evidence) is USCIS asking for more information:

• Common reasons: Specialty occupation, degree equivalency, employer-employee relationship
• Employer has 87 days to respond
• Response must address all concerns raised
• May need additional documentation, expert letters, detailed job descriptions

Best practices: Work with experienced immigration attorney, respond comprehensively, meet deadline, provide strong evidence.

Bench time on H-1B is problematic:

• H-1B requires productive work in specialty occupation
• Extended bench time may violate H-1B requirements
• Employer must still pay prevailing wage even on bench
• USCIS may question if job is legitimate

Short bench periods (between projects) may be acceptable, but extended bench raises concerns. Employer should find new project or consider termination.

Job title changes may require amended petition:

• Material changes (different duties, location, significant salary change) require amended H-1B
• Minor changes (same duties, better title) may not require amendment
• If new title has different prevailing wage, need new LCA
• Consult with immigration attorney to determine if amendment needed

When in doubt: File amended petition to be safe. Better to file than risk violation.

Cap-exempt H-1B doesn't count toward 85,000 cap:

• For employers that are institutions of higher education
• Nonprofit research organizations affiliated with universities
• Government research organizations
• Can file anytime (not just April)
• No lottery, direct processing

Benefits: No cap competition, faster processing, can start anytime. Many universities and research labs are cap-exempt.

Unpaid leave on H-1B is generally not allowed:

• H-1B requires full-time employment and payment of prevailing wage
• Extended unpaid leave may violate H-1B requirements
• Short leaves (vacation, sick leave) with pay are fine
• FMLA leave (if eligible) may be acceptable

Alternatives: Use paid time off, discuss with employer about options, consider part-time H-1B if needed long-term.

If employer asks you to work illegally:

• Refuse immediately - working illegally can get you deported and banned
• Document everything (emails, messages, conversations)
• Report to authorities: DOL, USCIS, or ICE
• Find new employer and file H-1B transfer
• Consult immigration attorney for guidance

Examples of illegal work: Working without valid status, working for different employer without transfer, working in different location without LCA.

Yes, employer can sponsor Green Card through employment-based categories:

• EB-1: Extraordinary ability, outstanding professors, multinational executives
• EB-2: Advanced degree or exceptional ability (may need PERM)
• EB-3: Skilled workers, professionals (requires PERM)

Process: PERM labor certification (for EB-2/EB-3) → I-140 petition → I-485 adjustment (when priority date current).

Timeline: 1-5+ years depending on category and country of birth.

PERM (Program Electronic Review Management) is labor certification required for EB-2 and EB-3 Green Cards:

• Proves no qualified U.S. workers available for the position
• Employer must conduct recruitment (job postings, ads)
• File Form ETA-9089 with Department of Labor
• Processing takes 6-12 months

After PERM approval: Employer files I-140 petition. PERM is valid for 180 days - must file I-140 within that time.

Changing employers during Green Card process is complex:

• Before I-140 approved: Must restart process with new employer
• After I-140 approved (180+ days): Can use AC21 portability to change employers
• New employer must file new PERM and I-140 (or just I-140 if using AC21)
• Priority date may be preserved in some cases

AC21 allows: Changing employers if I-140 approved 180+ days ago and I-485 pending 180+ days.

If employer withdraws Green Card petition:

• Before I-140 approved: Petition is terminated, must restart with new employer
• After I-140 approved: I-140 remains valid, but you may need new employer to continue
• If I-485 pending: May be able to use AC21 to change employers
• Priority date: May be preserved if I-140 was approved

What to do: Find new employer quickly, file new petition or use AC21, consult immigration attorney.