H1-B Checklist to Avoid an RFE in 2016

Post 95 of 334

The date to file your client’s H1-B petition for the 2017 fiscal year is coming up fast. Last year’s trends and the trends of years previous are expected to continue, and that means even more petitions flooding in for the same number of annual visas. That also means more RFE’s that you might have to deal with. An RFE is not the end of the world, and can oftentimes be addressed with success, an RFE is a big red flag on your client’s petition waving to CIS to take a close, scrutinizing look. This can turn up minute details that would otherwise have been overlooked but now count against your client’s likelihood of approval.

CIS has a big job to do and red flags make their job of sorting through hundreds of thousands of petitions easier. Filing an impeccable petition also makes their job easier. While CIS is known to issue an RFE for no apparent reason, most RFE’s can be avoided. That means it’s time to break out your H1-B checklist.

  1. Is your client’s job a specialty occupation?

What does this mean? To CIS, a specialty occupation is a job that requires your client to hold a US bachelor’s degree in the field or higher, or its equivalent to carry out the duties of said job. Their job must require specialized skills and knowledge to perform. How can you prove this? A copy of the ad for your client’s job that includes minimum requirements can be used as evidence, as well as similar postings for similar jobs working for similar companies. If your client’s job requires a bachelor’s degree or higher but similar positions do not, you need to supply more evidence. This means expert opinion letters, which can be useful anyway, as well as evidence that shows the skills needed for this particular job are more advanced due to the unique nature of your client’s particular job.

  1. Does your client’s education meet the requirements for their job?

Once you’ve established that your client’s job is H1-B qualified, it’s time to make sure you’ve proven your client is qualified for his or her H1-B job. This means they have a bachelor’s degree or higher in the required field, as well as the necessary training and work experience the job requires.

  1. Is the value of your client’s education clear to CIS?

If your client’s degree is from a country outside of the United States, it will need to be evaluated for US equivalence. Anything besides a very straightforward US bachelor’s degree needs a credential evaluation. Never submit an H1-B petition with a foreign degree without a detailed credential evaluation. This is an increasingly common RFE trigger. The Indian and other three-year Bachelor’s degrees commonly trigger RFE’s because of the missing fourth year. A credential evaluator can convert years of progressive work experience in your client’s field of employ into college credit to account for the missing year. Progressive means that the candidate’s work required them to take on more responsibilities and develop their knowledge base and skill set to meet the increasing demands of the work. Three years of progressive experience in the field can be equated to one year of college credit. All that is needed is a well-documented evaluation to prove it.

Another common problem that trigger RFE’s for even the most qualified candidate’s petition is that they have a degree that doesn’t call itself a degree. Many countries have degrees that require postsecondary education and the necessary stages of education to meet Bachelor’s degree requirements, but don’t actually have the word “degree” in the title. These certifications also require a credential evaluation because while in some countries these are degree equivalencies, in other countries they are not. Because this is not clear and straightforward, without a credential evaluation CIS will not have enough evidence to approve your client’s petition.

  1. Do your client and his or her employee have an employer-employee relationship?

What is an employer-employee relationship? To establish that your client and his or her employer have this kind of relationship, the employer must be able to hire, fire, promote, pay, and otherwise control the work that the employee does. To prove that this is the case, submit a copy of the employment contract, and other documentation that clearly displays the nature of your client’s work.

  1. Does your client’s degree match his or her field of employ?

Just six or seven years ago, H1-B candidates were able to get their visas approved with a degree in a field related to their job. Now, CIS requires an exact match. Employers hire employees for specialized positions with bachelor’s degrees in related fields all the time. CIS, however, does not approve their visas. Instead, they get RFEs. If your client’s bachelor’s degree is generalized or in a field related to but not an exact match for his or her job, have a credential evaluator review their educational documents. Oftentimes, a detailed evaluation that takes work experience into account to draw an equivalency to a degree in the matching field.  Years of progressive work experience in the field can be counted towards this matching degree specialization with the three years of experience to one year of college credit conversion. This can both work to account for the missing fourth year in three-year Bachelor’s degrees, AND to write an equivalency for a specialized degree in your client’s exact field of employ.

Before you file, sit down with your client, your client’s employer, and your credential evaluator and go through these questions. Ask, is this true? Then ask, have we provided the evidence necessary to clearly prove to CIS that this is true? Don’t ever file without doing everything you can to make sure you and your client got the petition right the first time. There’s no need to wait for an RFE.

About the Author

Sheila Danzig

Sheila Danzig is the Executive Director of CCI TheDegreePeople.com a Foreign Credentials Evaluation Agency. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/ or call 800.771.4723.

 

This article was written by Rebecca Little

MENU