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USCIS may issue a Request For Evidence (RFE)

1) when USCIS believes that
        a) the petitioner has failed to establish eligibility
                i) for the benefit sought,
                ii) including in cases
                        (a) where the petitioner has failed
                                (i) to establish that
                                        (A) a valid employer-employee relationship
                                                (I) exists and
                                                (II) will continue to exist
                                                        (aa) throughout the duration
                                                                (T) of the beneficiary��s employment term
                                                        (bb) with the employer.

Such RFEs, however, must specifically
        a) state what is at issue
                i) (e.g. the petitioner has failed to establish
                        (a) through evidence
                        (b) that a valid employer-employee relationship exists) and
        b) be tailored to request specific illustrative types of evidence
                i) from the petitioner
                ii) that goes directly to
                        (a) what USCIS deems as deficient.

Officers should first carefully review all the evidence
        a) provided with the H-1B petition
        b) to determine
                i) which required elements have not been sufficiently established
                        (a) by the petitioner.

The RFE should neither
        a) mandate that a specific type of evidence be provided,
                i) unless provided for by regulations
                ii) (e.g. an itinerary of service dates and locations),
        b) nor should it request information
                i) that has already been provided in the petition.

Officers should
        a) state
                i) what element the petitioner has failed
                        (a) to establish and
        b) provide examples of documentation
                i) that could be provided to establish H-1B eligibility.

D. Compliance with 8 CFR 214.2(h)(2)(i)(B).

Not only must a petitioner establish that
        a) a valid employer-employee relationship
                i) exists and
                ii) will continue to exist
                        (a) throughout the validity period of the H-1B petition,

1) the petitioner must continue to comply with 8 CFR 214.2(h)(2)(i)(B)
        a) when a beneficiary is to be placed
                i) at more than one work location
                ii) to perform services.

To satisfy the requirements
        a) of 8 CFR 214.2(h)(2)(i)(B),

the petitioner must submit a complete itinerary
        a) of services or engagements
        b) that specifies
                i) the dates
                        A) of each service or engagement,
                ii) the names and addresses
                        A) of the actual employers, and
                iii) the names and addresses
                        A) of the establishment, venues, or locations
                                I) where the services will be performed
                                        (a) for the period of time requested.

Compliance with 8 CFR 214.2(h)(2)(i)(B) assists USCIS
        a) in determining
                i) that the petitioner has concrete plans
                        A) in place
                        B) for a particular beneficiary,
                ii) that the beneficiary is performing duties
                        A) in a specialty occupation, and
                iii) that the beneficiary is not being ��benched��
                        A) without pay
                        B) between assignments.

(h) Additional Fee Required by Public Law 111-230. [Added by 1/18/11, AD11-19].

Public Law 111-230 requires the submission
        a) of an additional fee of $2,000
                i) for certain petitions seeking H-1B classification.

(1) Definition of Employer.

To determine
        a) who is subject to the additional fee of $2,000,

USCIS will apply the definition of ��employer��
        a) found at 8 CFR ��214.2(h)(4)(ii),
        b) which states:

        ��[A] person, firm, corporation, contractor, or other association, or organization
                (a) in the United States
                (b) which:
                        (1) engages a person
                                (A) to work within the United States;
                        (2) has an employer-employee relationship
                                (A) with respect to employees under this part,
                                (B) as indicated by the fact that
                                        (I) it may
                                                (i) hire,
                                                (ii) pay,
                                                (iii) fire,
                                                (iv) supervise, or
                                                (v) otherwise control
                                                        (i) the work of any such employee; and

                        (3) has an Internal Revenue Service Tax Identification number.��

The use of this definition
        a) for purposes of determining the application
                i) of this new fee

1) does not extend or authorize its application
        a) beyond
                i) Public Law 111-230 and
                ii) the H-1B rules and regulations.

(2) Counting Full-time and Part-time Employees.

For the purposes
        a) of Public Law 111-230,

all employees,
        a) whether full-time or part-time,

1) will count towards the calculation
        a) of whether an employer is subject to the new fee.

(3) U.S. and Foreign Payrolls.

When calculating the percentage
        a) of employees
        b) in
                i) H-1B or
                ii) L-1 status,

1) all employees
        a) in the United States,
        b) regardless of
                i) whether they are paid
                        (a) through
                                A) a U.S. or
                                B) foreign payroll,

    will count toward the calculation.

(4) Treatment of Petitions Filed Before Publication of Revised Forms.

If an H-1B petition either
        a) seeking initial classification or
        b) requesting a change of employer

    is filed
        a) before publication
                i) of the revised Form I-129,

1) the adjudicator will review any explanation or supporting evidence
        a) to determine
                i) whether the fee
                        (a) required by Public Law 111-230

                   applies to the petition,
                        (a) as explained
                                (i) in the following chart:



If ��
And ��
And ��
And ��
Then ��
The H-1B petition is postmarked before August 14,
2010
��������������������������
The fee does not apply; adjudicator can adjudicate the
case
The H-1B petition seeking either (a) initial grant of
nonimmigrant
classification for the beneficiary or (b) authorization for an alien already classified as an H-1B nonimmigrant to change employers is postmarked on or after August
14, 2010 through,
The petitioner has paid the fee required by P.L.
111-230 OR the
petitioner has attached a statement or evidence that it is exempt from the fee required by P.L. 111-230,
����������������
The adjudicator can adjudicate the case
The petitioner has not paid the fee
required by P.L.
111-230 AND the
The employer has fewer than
50 employees in the United States
�������
The fee does not apply, adjudicator
can adjudicate the case
and including, September 30,
2014
petitioner has not attached a statement or
evidence that it is
exempt from the fee required by P.L. 111-230,
The employer has 50 or more employees in the
United States
50% or fewer of the employees in
the U.S. are in
H-1B, L-1A, or L-1B nonimmigrant status
The fee does not apply, adjudicator can adjudicate the
case
More than
50% of the employees in the U.S. are in H-1B, L-1A, or L-1B nonimmigrant status
The fee DOES
apply. The adjudicator must issue an RFE explaining that the petitioner must either submit the fee or provide evidence that it is, in fact, not subject to the fee.
The adjudicator
CANNOT determine from other documents
submitted
whether the fee required by P.L.
111-230 applies
�������
The adjudicator must issue an RFE
explaining the provisions of P.L.
111-230 and
informing the petitioner that he or she must submit either the fee or a statement or other evidence as to why the fee does not apply.




(5) Composition of Request for Evidence (RFE).

1-1) If
        a) the fee applies
        b) but was not collected or
1-2) if the adjudicator cannot determine
        a) whether the fee applies,

2) the adjudicator should issue an RFE
        a) to the petitioner
        b) soliciting
                i) the additional fee or
                ii) a statement or other evidence
                        A) that the fee does not apply.

The RFE should also cover any other deficiencies
        a) in the filing.

An RFE
        A) issued to address only the new fee,

1) should provide the petitioner
        a) with a maximum of 30 days
                i) to respond to the RFE.

If the RFE addresses other deficiencies         
        a) that would normally allow for more time to respond,

1) then the RFE may provide more than 30 days.

The RFE will inform the petitioner
        a) that it must submit an additional fee
        b) if
                i) it employs 50 or more individuals in the United States and
                ii) over 50% of those employees are in H-1B, L-1A, or L-1B nonimmigrant status.

The adjudicator:
        a) Must deny the petition
                i) if the petitioner fails to respond to the RFE.
                ii) (Previously submitted fees will not be refunded.)
        b) May
                i) request additional clarifying information or (in certain cases)
                ii) issue a notice of intent to deny (NOID)
                        (a) if the petitioner
                                (i) responds to the RFE and
                                (ii) indicates
                                        (A) that it is not subject to the fee,
                                        (B) but there are discrepancies that indicate otherwise.
        c) Cannot approve the petition
                i) if the petitioner
                        (a) responds to the RFE and
                        (b) provides evidence
                                (i) that it is subject to the additional fee,
                        (c) but fails to submit the additional fee
                                (i) with the response.

                (If a petition is denied,

                1) previously submitted fees will not be refunded.)

(6) Treatment of Petitions Once Revised Form I-129 Is Published.

After the revised Form I-129 is implemented,

1) an H-1B petition
        a) subject to the additional fee
        b) that is submitted without the fee

   will be rejected.

Rejected filings do not retain a filing date.

If,
        a) after the revised form is implemented,
        b) an adjudicator
                i) encounters an H-1B petition
                        (a) that was receipted without the additional fee and
                ii) determines that the fee was required,

1) the adjudicator should issue a NOID
        a) soliciting the additional fee.

Whenever possible,

1) the notice should cover any other deficiencies in the filing.

(7) Submission of Inaccurate Statement(s) by Petitioner to Avoid Payment of Fee.

The adjudicator should follow local procedures
        a) to refer to the Center Fraud Detection Office (CFDO)
                i) any petition

1) where there is information or documentation
        a) to substantiate that
                i) the petitioner has inaccurately presented material facts
                        (a) in
                                (i) the petition and
                                (ii) supporting documentation
                        (b) to avoid paying the additional fee.

31.4 Agricultural Workers (H-2A). [Revised by 6/24/09, AD09-14].

(a) General.

The H-2A nonimmigrant classification applies to an alien seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States. USCIS defers to the Department of Labor��s determination on the temporary labor certification for H-2A employment as to whether the proffered position qualifies as agricultural.

(b) Definitions.

(1) Seasonal. In the H-2A context, employment is of a seasonal nature where it is tied to a certain time of the year by an event or pattern, such as a short annual growing cycle (including planting, thinning, harvesting, and similar activities). It can also apply to a longer cycle.

(2) Temporary. Except in extraordinary circumstances, temporary agricultural employment does not last longer than one year. See 8 CFR 214.2(h)(5)(iv)(A). Ordinarily, the certification by the Department of Labor (DOL) is sufficient evidence that the employment is temporary. See 8 CFR
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