Don’t Fix H-1B RFEs – Avoid Them!

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More and more H-1B petitions are coming in each year for the same 85,000 annual visas. At the same time, we have seen a sharp increase in the prevalence of RFEs in response to these petitions.

Why You Don’t Want that RFE

An RFE is a tool that CIS uses to make a decision about whether or not a candidate’s visa should be approved. While receiving an RFE is an opportunity to strengthen your case, or your client or employee’s case – a second chance at providing all of the requested evidence CIS needs to approve the visa – it is also a big red flag. A glaring omission or error on the petition triggers CIS to take a closer look at it and may very well uncover small errors and inconsistencies that would have otherwise flown under the radar that you will now need to address. With so many petitions and so few visas available, CIS needs its red flags for short cuts.

While an RFE can be used to your advantage to build a stronger case for your visa, or your client or employee’s visa being approved, the roadmap to answering the RFE is not always so straightforward. In many cases, the RFE will not directly tell you how to answer it in its wording. One daunting example of this is the notorious Nightmare RFE that is virtually impossible to answer in the time allotted to answer it, and for a reasonable price. To address an RFE, sit down with your team – the lawyer, the candidate, the employer, and the evaluator – to see what is being asked and of whom, and what CIS really needs to know by the questions they are asking. If what they are asking for in the RFE is virtually impossible to provide, you may be able to answer their underlying questions with documentation and evidence that it is possible for you to provide.

Of course, the best option is to avoid an RFE in the first place. We’re coming up on autumn, which means it’s time to start preparing for the FY2018 H-1B season. Here are five measure you can take from the get-go to avoid an RFE.

  1. Show very clearly that your degree, or your client or employee’s degree is a US bachelor’s degree or higher or its equivalent. If the degree was earned outside of the United States, you will need to have your education, or your client or employee’s education evaluated by an authorized credential evaluation agency. If the bachelor’s degree is a three-year degree – ESPECIALLY if it is an Indian three-year bachelor’s degree – you need to find an agency with the authority and international education expertise to convert years of work experience into college credit to account for the missing fourth year.
  1. Check the answers on every document and form to make sure they are consistent. Inconsistent answers – even so much as a misspelling or the wrong graduation date – can trigger an RFE.
  1. The degree must be specialized. This means that if you, or your client or employee has a liberal arts degree, or a generalized degree, CIS will not approve the visa. H-1B requirements state that an H-1B candidate must have specialized skills and knowledge necessary to perform the duties of the specialty occupation to meet the visa requirements. Without a specialized degree, CIS cannot clearly see that you, or your employee or client meet these requirements. If this is the situation you face, talk with a credential evaluator about the course content of you or your client or employee’s college career and work experience. An authorized evaluator can convert classroom contact hours in a specialized field into college credit, and also convert years of progressive work experience into college credit that can count towards you or your client or employee’s specialized degree.
  1. The degree must be an EXACT fit for the job offer. Employers often hire candidates with a degree in a related field and work experience in the exact field or even a related field because the specialized skills and knowledge base learned through work and education meet the requirements of the job. When these qualified candidates go to file their visas, they receive RFEs. The solution? If your degree, or your client or employee’s degree is not an exact match for the job offer, you need a credential evaluation that evaluates course content and work experience, and makes the necessary conversions to count towards the correct degree equivalency with a major in the field of the specialty occupation.
  1. Clearly show that the H-1B job is a specialty occupation that requires a US bachelor’s degree or higher or its equivalent to carry out the duties of the job. You can do this by providing the ad for the job, documentation for similar jobs for similar companies, or with an expert opinion letter.

The best way to address an RFE is to avoid it. Don’t give CIS an excuse to pick apart your petition, or your client or employee’s petition. Tell them everything they need to know to make an informed decision about the petition the first time. We are seeing that if credential evaluations are submitted with the initial H-1B filing, a simple evaluation seems to be enough for CIS to approve the petition. However, with an RFE, a more complicated – and expensive – credential evaluation requiring more evidence, documentation, and even an expert opinion letter is almost always required.

Remember, an RFE is a big red flag waving high over the petition. Don’t wait for the opportunity to overturn an RFE to build a strong, solid case.

About the Author

Sheila Danzig

Sheila Danzig is the Executive Director at TheDegreePeople.com, a Foreign Credentials Evaluation Agency. For a free analysis of any difficult case, RFE, Denial, or NOID, please go to http://ccifree.com/ or call 800.771.4723.

 

This article was written by Rebecca Little

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