H1B Double Nightmare: RFE Right Job Title, Wrong Education

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When CIS finds one problem with an H-1B petition, they usually find more.  When education and specialty occupation issues team up to make for the Double Nightmare RFE, beneficiaries come up against a heavy burden of proof.

CIS approval trends change every year, but there has been a trend towards tightening interpretation around every facet of H-1B requirements.  For example, at the beginning of the decade beneficiaries with degrees in fields related to their specialty occupation could pretty much count on having their visas approved.  Now, they can be certain they will run into trouble as the degree specialization must now be an exact match for the job title.  Just a few years back computer programmers could be almost certain their job title meeting specialty occupation requirements wouldn’t be called into question.  The past two years have seen a massive spike in specialty occupation issues for job titles that had never run into this kind of issue before.

At TheDegreePeople we work with difficult cases and RFEs every year and know how to successfully answer them.  This past year, we had an onslaught of clients come in with the Double Nightmare RFE.  Answering with RFE required a two-step approach.  First, to prove that the job in question met H-1B specialty occupation requirements, we asked for the ad for the job that clearly shows minimum requirements, past hiring practices that showed the employer regularly hired candidates to the position with a minimum of the advanced degree in the field, ads for the same position in similar companies in the industry that also required a minimum of an advanced degree, and a detailed breakdown of the duties and responsibilities of the position.  To tie it all together, we always include an expert opinion letter to summarize and validate that the job title does meet H-1B specialization requirements.  Our clients provide the documentation about the position and we supply the expert.  We have experts in every field on hand 24/7 to write the opinion letter you or your employee or client needs to get the first half of the Double Nightmare RFE overturned.

The second step is to write a credential evaluation that closes any gaps between the education you have, or your client or employee has, and the education they need to get that visa approved.  This takes the visa, the job title, and CIS precedent decisions and approval trends into consideration.  If the beneficiary has the right degree in the wrong field, a generalized degree with inadequate specialization, or incomplete college, the best way we have found to address this issue is to include a work experience conversion in the credential evaluation.  With this conversion, three years of progressive work experience in the field of the H-1B job title – during which the beneficiary’s duties became increasingly specialized with increasing responsibilities – can be converted into the equivalent of one year of college credit in the field.  Using years of work experience, the right credential evaluation can combine years of college and years of work experience in the field to articulate the equivalency of the right degree in the exact field of the H-1B job title.

This year, due to the new CIS policy memorandum, beneficiaries may not get a chance to answer an RFE.  It is essential to get it right the first time.  If you or your employee or client has a degree that does not exactly match their field of employ, or if the degree is from a country outside of the United States, DO NOT submit the petition without a credential evaluation.  If you or your employee or client has a job title that does not always require a minimum of a US bachelor’s degree to perform, DO NOT submit the petition without an expert opinion letter.  Be sure to reference the position’s entry in the Occupational Outlook Handbook to check to make sure what minimum educational requirements are for that job title at that pay grade.

If you have any uncertainty, err on the side of caution.  For a free review of your case, or your employee or client’s case, visit ccifree.com.  We will get back to you in 48 hours or less.

 

 

This article was written by Rebecca Little

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