H-1B RFE · Extension, Amendment and Status Evidence
USCIS says the beneficiary has not established maintenance of H-1B status?
Maintenance of status becomes especially important when an H-1B petition requests an extension, amendment or other action for a beneficiary already in the United States. The response should reconstruct the relevant status and employment history and directly address any period USCIS believes was not properly maintained.
Separate petition eligibility from the request to extend or amend status in the United States.
A petition may present a qualifying H-1B job while separately raising a status problem involving the beneficiary’s prior stay or employment. The RFE should be reviewed to determine exactly which period, employer, wage record, I-94, amendment or other event USCIS believes creates the problem.
Current Form I-129 instructions require evidence of maintenance of status when a beneficiary seeks a change, extension or amendment of stay. Relevant evidence can include immigration records, wage records and other documentation showing that the beneficiary complied with the terms of the prior status.
Common maintenance of status RFE issues.
USCIS sees a wage or payroll gap.
Missing pay statements or periods without reported wages may cause USCIS to question whether the beneficiary was actually maintaining the approved H-1B employment.
The employment changed without a corresponding filing.
A worksite, employer, duty or other material change can raise questions concerning whether an amendment or new petition should have been filed.
The I-94 or travel history is unclear.
International travel, later admissions and different I-797 approval notices can change which period of authorized stay controls.
Prior status evidence is incomplete.
USCIS may request earlier approval notices, I-94 records, pay evidence or other documents necessary to trace lawful status through the requested extension period.
Use contemporaneous immigration and employment records to reconstruct the history.
The exact response depends on the alleged gap. Evidence should be organized chronologically and tied to the specific period USCIS questions.
- Forms I-797 approving prior petitions;
- Forms I-94, passport admission records and relevant travel history;
- Recent and historical pay statements for the disputed period;
- Forms W-2 and other wage or tax evidence where relevant;
- Employment verification and payroll records;
- Prior H-1B petitions and amendments necessary to explain changes in employment;
- LCA and worksite evidence where the alleged status issue concerns employment location or a material change;
- Evidence explaining any authorized nonproductive period, leave, termination event or transition where legally relevant; and
- A chronological statement matching each disputed period to the supporting exhibit.
Answer the specific alleged violation instead of simply resubmitting every prior approval notice.
Prior USCIS approval is important evidence but may not independently prove that the beneficiary maintained the terms of the approved status after approval. The response should address actual employment and status during the questioned period.
If the RFE relies on an incorrect timeline, overlooks travel or admission evidence, misreads payroll records, or attributes a gap to the wrong employer, the written response should identify the factual error expressly and support the corrected chronology with primary records.
A status problem can affect the extension request even when the underlying H-1B petition is otherwise approvable.
The petition and the beneficiary’s requested extension of stay involve related but distinct issues. A maintenance problem may affect the requested status action even where the offered position and beneficiary otherwise satisfy the H-1B classification requirements.
If USCIS denies the petition or status request, the decision should be reviewed carefully to determine whether the relevant remedy involves a motion, a new petition, consular processing, or another strategy based on the specific status finding.