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Case Study: EB-2 Education RFE – Overturned!

  • They must have been hired for a job that requires a US master’s degree or higher, or a US bachelor’s degree or its equivalent FOLLOWED BY at least five years of progressive work experience in the field.
  • They must have the education required for the EB-2 qualified job or exceptional ability as clearly proven with a National Interest Waiver.
  • One of the most common RFEs EB-2 candidates run into is an education issue RFE.  Our client came to us with an Indian three-year bachelor’s degree, many years of progressive work experience, and an RFE.  He had the years of experience to more than cover the five years of progressive work experience following having earned the bachelor’s degree.  The issue arose because with EB-2 educational requirements the bachelor’s degree is required to be a SINGLE SOURCE and CIS does not accept that the Indian three-year degree is the equivalent of the US four-year bachelor’s degree regardless of the number of classroom contact hours.  CIS requires the missing fourth year to be accounted for. With other visas, like H-1B, our client could have included a work experience conversion that converts three years of progressive work experience in a given field of specialization into one year of college education towards that degree to account for the missing year.  This does not work for EB-2 because that would not meet the equivalency requirement of a single source bachelor’s degree. Our solution was to write a credential evaluation fortified by CIS approval precedents and federal case law that took twelve years of our client’s progressive work experience in the field and converted it into the equivalent of a US bachelor’s degree in the field.  Then, the next five years of work experience were included to meet EB-2 educational standards requiring a single source US bachelor’s degree FOLLOWED BY five years of work experience in the field.  The RFE was overturned. If you or your employee or client is facing an education RFE for EB-2, let us help you.  Even the candidate doesn’t have the years to cover a complete work experience conversion, there are other ways to address the equivalency issue through detailed credential evaluations tailored to your or your employee or client’s unique situation, and through expert opinion letters and National Interest Waiver options.  Let us review your case for free.  Visit ccifree.com/.  We will respond in 48 hours or less.    ]]>

    Visa Adjudication Memorandum Support Part II: Expert Opinion Letters for I-140 Issues We Can Help You With

    Managerial/Executive Capacity Letter

    If you, or your employee or client works as a manager, you will have to provide extra evidence to make sure the job meets certain criteria to work for the selected preference.  The key factor here is to show that the beneficiary MANAGES the daily functions of the business rather than simply PERFORMS them.  Making this distinction clear in a letter by an expert in the field is essential to making sure the beneficiary doesn’t run into trouble with this differentiation in the adjudication process.

    Extraordinary Ability Letter

    If you, or if your employee or client is filing Form I-140 under classification EB-1, you will need to include a letter from an expert in the beneficiary’s field who is not affiliated with the beneficiary themselves.  This letter needs to clearly show CIS that the beneficiary is internationally recognized for their significant contributions to the field of their occupation.

    National Interest Waiver

    This expert opinion letter is needed if your beneficiary is petitioning as key to the national interest.  What is in the “national interest” is not clearly spelled out and is highly subjective, and so an expert opinion letter is needed to prove to CIS that the beneficiary as an individual serves a key function for the national interest, not just that the occupation or field of employment sponsorship is in the national interest.  When CIS determines whether a beneficiary qualifies for a National Interest Waiver, they are looking for scope of benefit – meaning is the benefit of this person’s contribution effects the nation.  They also take into account whether a US citizen with the same qualifications would be able to accomplish what the beneficiary can.  Therefore, the expert opinion letter must address scope and uniqueness regarding your case, or your employee or client’s case.

    Specialty occupation, credential evaluation, and work experience evaluation issues also arise in I-140 cases.  These expert opinion letters must take the unique educational requirements of the visa into account because the sequence of education and work experience is nuanced, and any bachelor’s degrees or bachelor’s degree equivalency must be a single source.  This can be especially challenging if the degree was earned outside of the US, the degree major doesn’t match the field of employment, or years of college are missing.

    At TheDegreePeople, we will ALWAYS write you the evaluation or opinion letter you need with regards to your visa, or your employee or client’s visa, the particular occupation for the particular company, and with regards to CIS approval trends and process and policy changes.

    Whether you are working on an H1B or I-140 case, visit ccifree.com and let us review your case for free to identify any potential issues you may run into with adjudication.  We will get back to you in 48 hours with our full analysis and recommendations.

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    Visa Adjudication Memorandum Support Part I: Expert Opinion Letters for Issues We Can Help You With

    Specialty Occupation Letter Some reasons you, or your employee or client will need a specialty occupation letter have to do with wage level issues, which has been a common problem for the past two H1B seasons.  If the wage level is low, or if the low wage level indicates that the job is an entry-level position, you will need an expert opinion letter that explains how the job meets H1B specialty occupation requirements and why the wage level was selected.  Another issues that would require a specialty occupation letter to explain is the issue of what education level is typically required as a minimum to perform the job.  Could someone else with less education perform the same job?  For H1B visa approval the answer MUST be a resounding no, and this specialty occupation letter must explain why. Specialized Knowledge Letter To meet H1B requirements, it must be clearly shown that the beneficiary holds the specialized knowledge required to work the specialty occupation position.  If the beneficiary holds a generalized degree, incomplete college, or a degree in a different field than the position, you will need a specialized knowledge letter to show that the job requires the employee to have specialized knowledge, and that the employee has the specialized knowledge necessary.  This means specialized knowledge of the employer’s services, products, equipment, processes and procedures. Credential Evaluations If you, or if your employee or client has a degree from outside of the United States, a degree in a field that does not exactly match the H1B job, or incomplete or no college at all, you will need to include a credential evaluation to show that your education, or your employee or client’s education – inside and outside of the classroom – is the equivalent US academic value of what is required to meet H1B education standards.  To qualify for H1B status, the beneficiary must hold a US bachelor’s degree or higher in the field of the specialty occupation.  If you, or your employee or client holds ANYTHING BUT a US bachelor’s degree (or higher if required by the specialty occupation) in the exact field of the specialty occupation, you will need to include a credential evaluation letter to clearly show CIS that H1B educational requirements are met. Work Experience Evaluations If the beneficiary has incomplete college, no college, or needs extra credits to meet US academic value requirements from an overseas degree, or if the degree is in a generalized or mismatched specialization, you will need to include a work experience evaluation.  Three years of progressive work experience in the field of the specialty occupation can be evaluated to be the equivalent of one year of college credit in that field.  Progressive work experience means that the nature of the work became increasingly complex with the beneficiary taking on more responsibility as the course of the employment went on, indicating that education took place on the job. If your case, or if your employee or client’s case includes one or more of these triggering situations, or if you are unsure of whether issues are likely to arise, visit ccifree.com/ for a free review of your case.  We will identify issues likely to arise in the adjudication process and recommendations on how to prevent them in the initial petition. Watch out for Part II next week where we will discuss expert opinion letters needed for Education-Based Green Card petitions.  ]]>

    H1B Changes in Adjudication Means Getting the Initial Filing Correct

    If you, or if your client or employee is planning to file for H1-B status for FY2020, the process has changed.  This coming season, you will still file the first week of April as always.  The good news is no paperwork must be submitted until AFTER your employee or client is selected in the H-1B lottery. The troubling news is that CIS will now be denying petitions outright without issuing RFEs. Denials are much more difficult to overturn than RFEs.  This change has lawyers talking about submitting the specialty occupation expert opinion letter right away with the rest of the paperwork to avoid an RFE that won’t come anymore. While every year at TheDegreePeople we urge H1-B hopefuls and their teams that the best answer to an RFE is to avoid it in the first place.  This coming season it’s more important than ever to identify where your employee or client’s case is likely to run into trouble and include any additional evidence and documentation in the initial petition. The past two years, the rate of specialty occupation RFEs has made a sharp rise.  If you hold, or if your employee or client holds a job that does not require a US Bachelor’s degree or its equivalent or higher in all cases as an industry standard, you need to include an expert opinion letter that clearly shows why the job in question meets H1-B standards for what qualifies as a specialty occupation.  Don’t take any chances this year.  If you are selected, or if your employee or client is selected in the H-1B lottery, you need to include any credential evaluations, supporting evidence, and expert opinion letters needed in the first paperwork filing because you will not get a second chance anymore.  At TheDegreePeople we have experts on hand 24/7 to write the letter you need, or your employee or client needs to get that H1-B petition approved.  We work with difficult RFEs every year and we know what tends to trigger an RFE and how to prevent them.  Don’t file without a specialty occupation letter.  Visit ccifree.com/ for a free consultation on your case, or your employee or client’s case.  We will get back to you in 48 hours or less.  ]]>

    Round 2: What to do if the 2nd RFE Arrives After Resolving the First RFE

    If the petition process and first round of H1B RFEs aren’t stressful enough here comes round two of RFEs.  When CIS finds something wrong with a petition, it opens the floodgates to finding more details out of place that would have otherwise gone unnoticed.  The best way to prevent round two of RFEs is to prevent round one by identifying the common RFE triggers inherent to the situation in your case and plan accordingly, but this doesn’t always work. If you or your employee or client is facing down RFE round two, don’t panic.  The petition has not been denied, CIS just needs more information to make a decision. The trick with any RFE is not to get caught up in the wording or individual demands, but rather to go back to the basics and see where evidence and analysis is lacking.  To qualify for H1B status, the job must be a specialty occupation, which means as an industry standard or a standard hiring practice a minimum of a US bachelor’s degree or higher in the specialization is required for entry into the occupation.  The beneficiary must hold a US bachelor’s degree or higher or its acceptable equivalency in the exact field of the specialty occupation.  The employer must be economically viable and pay the beneficiary the prevailing wages and benefits for the specialty occupation, and there must be an employer-employee relationship in which the employer can hire, fire, promote, supervise and otherwise control the work the beneficiary does. Read the RFE and identify which of these requirements CIS is having trouble adjudicating.  Is it the job?  Is it the education?  Is it the working conditions?  At TheDegreePeople we work with difficult RFEs every year and we know how to identify where cases are lacking in evidence and analysis, and which common RFE traps beneficiaries fall into as CIS approval trends change from year to year.  Let us review your case for free before you answer that second round of RFEs.  Visit ccifree.com and we will get back to you in 48 hours or less.]]>

    I-140 Problems: Common RFE Triggers and their Solutions

    In light of the new USCIS policy memorandum, adjudicators now have the discretion to deny a petition without first issuing and RFE or NOID for all visas, and this includes visas that require a Form I-140.

    While the new memorandum can feel like a reason to be nervous because we don’t know how this law on the books will play out in practice, it actually changes very little in how beneficiaries and their teams should approach the process.  That means looking at common places where applicants run into problems and then taking steps to prevent running into them.

    If you or your employee or client’s education or job don’t clearly meet the educational standards of the classification chosen in Part 2 of Form I-140, you need to make sure to provide the evidence and documentation you need to fill in the gaps between the requirements and you or your employee or client’s situation.  Incomplete college, education attained outside of the United States, or no formal education are all situations that require a detailed credential evaluation that takes the specific educational requirements of the visa and the classification into consideration.  If an evaluation agency does not ask about the job or the visa before you order, look elsewhere. 

    Before you file, make sure all answers on the PERM and on Form I-140 are consistent.  Inconsistencies will trigger an RFE, even if it is just a spelling error.  If there are changes needed, make sure to check yes for Part 4 Item 7 on the Form I-140.  Place a bright sheet of paper directly beneath Form I-140 that states this is an amended petition and the PERM has already been submitted and include the receipt number for the PERM.  This way, inconsistencies will be accompanied with a clear explanation.  CIS may inquire anyway – there are never any guarantees with CIS – but this will be much less likely and if you do receive an RFE you will be ready.

    At TheDegreePeople we work with I-140 RFEs every year and understand CIS approval trends and what triggers RFEs.  This year, you may not get a chance to fortify your case with an RFE.  Before you file, let us review your case and identify where in the petition an RFE is likely to be triggered so you can accommodate accordingly.  For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less.

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