What's Happening with H-1B RFEs in 2026?
An H-1B RFE (Request for Evidence) is a formal notice from USCIS asking for additional documentation before approving a petition. As of early 2026, H-1B RFE rates have surged to levels not seen since 2019. According to aggregated attorney data from AILA and Fragomen's 2025 mid-year review, RFE rates for extensions and transfers rose from roughly 9% to over 30%. For HR leaders, this means longer processing times, higher legal costs, and more anxious employees waiting for approvals.
Executive Summary
- Problem: USCIS is scrutinizing H-1B extensions and transfers more heavily, issuing RFEs at rates not seen since 2019. Prior approvals no longer guarantee smooth renewals.
- Impact: Each RFE adds 60-90 days to processing time, increases legal fees, and creates uncertainty for employees whose status depends on approval.
- HR's Role: Maintain the internal documentation your immigration attorney needs to build strong cases. Communicate proactively with affected employees about timelines.
Why This Matters for HR
Longer Timelines
An RFE adds 60-90 days to processing time. For an employee whose current status expires soon, this delay can create work authorization gaps. HR teams need to factor RFE risk into extension filing timelines.
Higher Costs
RFE responses require additional attorney time. Budget for the possibility that some extensions will cost more than expected.
Employee Anxiety
Employees waiting on immigration decisions are stressed. When an RFE arrives, that stress increases. HR plays a key role in keeping employees informed and reassured.
RFE Rate History
The pattern is clear: RFE rates correlate with administration priorities. HR teams should plan for elevated scrutiny through at least 2026.
What's Triggering RFEs
Your immigration attorney handles the RFE response. But understanding what triggers scrutiny helps HR teams provide better supporting documentation.
Specialty occupation questions. USCIS wants proof that the job genuinely requires a degree in a specific field. Generic job descriptions increase RFE risk.
Employer control questions. USCIS wants evidence that your company (not a client or third party) directs the work. This typically applies when employees work at client sites, hybrid setups, or under dotted-line reporting structures. USCIS looks for proof that the petitioning company maintains daily supervision and control over work assignments, performance reviews, and time-off approvals.
Wage level questions. A lower wage level paired with senior job duties raises flags.
What HR Leaders Are Responsible For
Your immigration attorney files petitions and responds to RFEs. Your job is to maintain the internal documentation they need to build strong cases.
Keep Job Descriptions Current
Job descriptions written three years ago may not reflect current work. If responsibilities have expanded, update the description. Your attorney will use this language in filings.
Action: Review job descriptions annually or when roles change significantly. Flag updates to your immigration counsel before extension time.
Maintain Organizational Charts
USCIS may ask for org charts showing reporting structure. Keep these current, especially when teams reorganize.
Action: Update org charts when managers change or teams restructure. Store historical versions.
Document Supervision for Remote Workers
If your H-1B employees work remotely or at client sites, document how your company supervises their work. Who assigns projects? Who conducts performance reviews? Who approves time off?
Action: Ensure your HR records clearly show that your company (not a client) directs the employee's work.
Align Wages with Job Complexity
If an employee's responsibilities have grown but their wage level hasn't changed, flag this for your immigration counsel. Mismatches between job duties and wage levels invite scrutiny.
Action: When promoting H-1B employees or expanding their responsibilities, discuss wage level implications with your attorney.
When to Alert Counsel Early
Don't wait until extension time to flag changes. Contact your immigration attorney proactively when:
- Employee's role or title changes mid-extension cycle
- Promotion leads to higher wage level or new work location
- Employee begins remote work or client-site assignment
- Reporting structure changes (new manager, team reorganization)
- Employee transfers to a different department or business unit
Early communication gives your attorney time to assess whether an amendment is needed or how to position the next extension.
Communicating with Employees
When an RFE is issued, your immigration attorney handles the response. But HR often delivers the news to the employee.
What to communicate:
- An RFE is a request for more information, not a denial
- Most RFEs are resolved successfully
- The attorney is handling the response
- The timeline has extended by approximately 60-90 days
- You will keep them informed as the case progresses
What to avoid:
- Speculating about reasons or outcomes
- Promising specific timelines
- Offering legal advice
Working with Your Immigration Counsel
Strong partnerships with immigration attorneys reduce RFE risk. Make their job easier by:
- Providing updated job descriptions before they request them
- Responding quickly to documentation requests
- Flagging role changes, promotions, or remote work arrangements proactively
- Asking them to alert you to trends they're seeing in RFE patterns
If you're seeing frequent RFEs, ask your attorney whether your documentation practices need adjustment.
Frequently Asked Questions
Should we file extensions earlier because of RFE risk?
Yes. USCIS allows extensions to be filed up to six months before the current status expires. Filing earlier provides buffer time if an RFE is issued. Discuss timing strategy with your immigration attorney.
Does premium processing reduce RFE risk?
No. Premium processing speeds up the decision timeline but does not reduce the likelihood of an RFE. If USCIS needs more information, they will issue an RFE regardless of processing speed.
What should I tell an employee when they receive an RFE?
Reassure them that an RFE is a request for more documentation, not a denial. Most RFEs are resolved successfully. Let them know the attorney is handling it, and the timeline has extended by approximately 60-90 days.
How can we reduce RFE risk for future filings?
Maintain current job descriptions, keep org charts updated, and document supervision for remote workers. These are the materials your attorney needs to build strong cases. Flag role changes or promotions proactively so wage levels can be reviewed.
Key Takeaway
Your immigration attorney handles RFE responses. Your job is to maintain the documentation they need: current job descriptions, updated org charts, and clear records of employer supervision. Strong internal documentation reduces RFE risk and speeds up responses when RFEs do occur.
Up Next: With H-1B uncertainties, explore O-1 visas as an alternative for senior talent. Read our O-1 strategy guide →
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration rules change frequently. Consult with a qualified immigration attorney for guidance on specific cases.
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