Over the past few years, we have seen record numbers of RFEs issued in response to H1B visas. This year, we will likely see a record few because USCIS issued a memorandum giving adjudicators the authority and initiative to reject petitions outright without first issuing an RFE.
This does not change our overall approval strategy when it comes to H1B visas, which is to get it right the first time. Anticipate any issues your case may run into during processing and keep an eye on USCIS approval trends. It is important to for all members of the H1B team to understand where issues are likely to arise, and where they need to pay extra attention to make sure they don’t drop the ball, especially this coming April when there may be no second chances. That’s why it is essential to look back on this past year and find out who caused that RFE.
Sometimes it’s no one’s fault, and sometimes it’s fault of USCIS.
When working with any bureaucratic process, there is the possibility of error. When working with USCIS, there is the understanding that processing errors occur, and that their approval trends are volatile and can be unpredictable. It can be difficult to anticipate which parts of the law they will interpret which way from year to year. If approval issues arise due to bureaucratic or human error, there will likely be a way to address it. A Denial is not the end of the road, it is just harder to overturn than an RFE. If it is no one’s fault, or if USCIS pulls a fast one on us again, we can find a way to work around it.
Sometimes the lawyer caused the RFE.
Occasionally, an immigration attorney will file the wrong document, or file the petition wrong. While this is rare, it can cost an outright approval. To prevent this, legal assistants are encouraged to check in with TheDegreePeople.com to make sure that they have all of the necessary immigration forms, labor forms, and documentation necessary to file everything on time, in the right order, and filled out appropriately.
Sometimes the beneficiary caused the RFE.
It is not uncommon for a beneficiary to misunderstand the US academic equivalency of their education. Sometimes a bachelor’s degree in one country is not a bachelor’s degree in the United States because even though the words translate the educational value does not. Some certifications and professional licenses in some countries are the equivalent of a US bachelor’s degree in that field, while the US license or certification is not. Sometimes a beneficiary will have a degree from an unaccredited academic institution, or even from a degree mill. It is important for beneficiaries to understand their education, and what it means in terms of US value, and to make sure that their school is accredited. If the beneficiary does not have the necessary education, it is their responsibility to make sure they have enough education and work experience to make up the equivalency.
Sometimes it’s the employer or the job that caused the RFE.
If the Labor Condition Application (LCA) is filled out incorrectly or misfiled, if there are discrepancies between the job description and the entry on the LCA, if USCIS feels that the wage level was set incorrectly or that the job does not meet specialty occupation requirements, issues will likely arise in the approval process. It is recommended that all petitions now include an expert opinion letter clarifying that the job meets H1B specialty occupation requirements and explaining why the wage level is set as it is to meet H1B requirements.
Before you file, let us review your case to make sure all your bases are covered. It is more important this year than ever before to get it right the first time, because you may not get a second chance. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.
This article was written by Rebecca Little