h1b cap

Common H-1B Issues to Anticipate this Adjudication Season

Common H-1B Issues to Anticipate this Adjudication Season

In the next few months, H-1B petitioners and beneficiaries will find out if their petitions have been selected in the lottery, and accepted for approval.

We predict this year will follow the trend of the previous few years with an increase in H-1B issues that block beneficiaries from outright approval. What is unclear is whether beneficiaries will be receiving RFEs or Denials in response to these issues. Last year, adjudicators were given the authority and encouragement to deny petitions outright without offering an RFE as an opportunity to respond questionable cases. This was announced in a USCIS memorandum along with several other changes to the H-1B selection and adjudication process, some of which went into effect this lottery season, and some of which did not.

One thing is certain: preparation is key. It is FAR from impossible to overturn a Denial. You just need to stay one step ahead of the game. That means understanding what about your case may raise red flags, and that means going back to the basic H-1B eligibility requirements and taking an honest look at where your case may fall short.

Employer-Employee Relationship

Small businesses often run into trouble here if they cannot clearly show in the LCA that they can afford to pay the prevailing wage to the H-1B worker and maintain economic viability. Another big issue is when the beneficiary is an owner, founder or co-founder, or sole proprietor of the business. H-1B workers must have their work, wage, and employment status controlled by an employer to meet this requirement and beneficiaries cannot self-petition for this visa. If this is the situation, there must be a CEO or board of directors different from the H-1B worker that fills this role to prove an employer-employee relationship exists in the arrangement.

Wage Level

The H-1B employee must make the prevailing wages for the position. Factors that influence the prevailing wage include industry standards, company size, geographic location, and more. Workers making level one wages often run into issues. In a response to an RFE or Denial, you must articulate all of the factors that went in to setting the wage level and an expert opinion letter that assures the prevailing wage requirement has been met.

Specialty Occupation

For the last two H-1B seasons, this RFE has spiked in prevalence and is often linked with wage level issues. If you, or your employee or client’s job sometimes requires a US bachelor’s degree or higher, but not always, or if this job is particularly specialized, you need to take extra steps to meet this requirement. That means providing a detailed breakdown of the duties and tasks of the job, as well as the advanced knowledge, skills, and understanding that must be applied every day in this position. You will also need to show that a US bachelor’s degree or higher is a typical minimum requirement for this job as either an industry standard, or as a company standard as evidenced in the ad for the job and in past hiring practices. An expert opinion letter must also be included to lend validity to and analysis of the documentation provided by your team.

Educational Requirements

H-1B requires the beneficiary have a US bachelor’s degree or higher or its equivalent. Foreign degrees that are not accompanied by the right credential evaluation raise red flags, especially the Indian three-year bachelor’s degree. The right credential evaluation takes the H-1B job into consideration and makes the necessary work experience conversions and detailed course breakdowns necessary to fill in any gaps between the job and the degree as the degree must be in the exact field of the H-1B job to address the demands of a specialty occupation. Incomplete college or no college experience must be compensated for with work experience conversion that must be written by a professor with the authority to convert work experience into college credit.

Any situation out of the ordinary or that is not completely straightforward can raise a red flag, which in turn triggers and RFE or Denial. At TheDegreePeople.com we work with RFE and Denial cases every year. We know what to look for and we know how to successfully address it. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.

Case Study: Specialty Occupation RFE Overturned with Some Expert Opinion Letters but not Others

The Specialty Occupation RFE has become the new nightmare
facing H-1B beneficiaries, their sponsors, and their lawyers.  They can be answered successfully with the
inclusion of an expert opinion letter, but this does not always work.

There are two reasons why:

1. The letter is
lacking in detail.  
USCIS requires a
very detailed letter with a breakdown of the daily duties and responsibilities
of the job and how specialized knowledge and skills are required to carry them
out.  They need to understand this position
and its educational requirements within the broader context of the industry,
and they need to know all of the factors that went into setting the wage
level.  A detailed expert opinion letter
can only accomplish this if you provide said expert with as many details as
possible.  USCIS needs to know absolutely
everything.

2. The expert lacks
field experience.  
Every expert we
work with at CCI TheDegreePeople.com has extensive experience working in their
field of expertise.  While some of our
experts are professors in that field, they also work directly in the
field.  Teaching about the field is not
good enough for USCIS to consider someone an expert – they must WORK IN THE
FIELD beyond simply teaching it, and have extensive field experience and
respect within the field of specialization. 
When the right expert writes a detailed letter, the Specialty Occupation
RFE is overturned and the visa is approved. 
When the WRONG expert writes it, even if the letter is detailed, USCIS
denies the visa.

Make sure you work with the RIGHT expert this RFE season.  We have the right kind of experts on hand in every field ready to help you get that RFE overturned.  Your job is to provide the details, and their job is to lend their authority to strengthen your case and get that RFE overturned.  Get a free review of your case. We will get back to you in 48 hours or less.

H-1B Specialty Occupation Survival Guide for the FY2020 Lottery

Next week, USCIS begins accepting H-1B petitions on Monday April 1st.  We suspect that this year there will be more than enough petitions to fill the 65,000 general H-1B cap-subject visas and the additional 20,000 H-1B visas for advanced degrees, resulting in a lottery.

Getting selected in the lottery is just the first step of the process.  Last year, the rate of RFEs for H-1B petitions jumped 45% from the year before, and of the petitions that received an RFE only 60% ended up being approved.

The two most common RFE issues that blocked beneficiaries from getting their visas approved outright – and in some cases entirely – were specialty occupation and wage level.  These two issues often came tied together as USCIS made the assumption that occupations set at level one wages were entry level, and many of these assumed positions did not ALWAYS require a minimum of a US bachelor’s degree or higher for entry not the position.  For this reason, USCIS stated that the beneficiary either was not being paid the prevailing wage for the specialty occupation, or the job did not meet specialty occupation requirements.

This year, USCIS adjudicators have the authority to deny petitions outright without first issuing an RFE to give beneficiaries the chance to strengthen their case.  That means you have to get it right the first time. 

Here’s how:

When the petition is filed, be sure to include a detailed job description that clearly shows the complex nature of the job, including examples of duties in which theoretical or practical application of specialized knowledge must be applied.  You need to provide sufficient documentation that the job is complex in nature, and that the position requires a minimum of a US bachelor’s degree or its equivalent to perform. This can be done by providing the ad for the job along with ads for the same position in different companies within the industry, documentation of past employer hiring practices to show that the position always requires this educational minimum qualification, and an expert opinion letter from a professional with extensive experience WORKING IN THE FIELD of the H-1B job that explains why this position meet specialty occupation requirements, and why the wage level is appropriate.

Petitions are rejected when there is not sufficient evidence to show that the job, the employer, the beneficiary, and the contract all meet H-1B requirements.

USCIS has assured H-1B hopefuls and their sponsors that a petition will not be denied simply because the wages are set at level one.  Don’t take chances.  Make sure to give USCIS a detailed breakdown of all of the factors that went into setting the wage level backed up with an expert opinion letter.

Remember, the right expert to write the opinion letter USCIS will accept – because expert opinion letters are often rejected – is someone who has extensive experience working in the field.  A professor in the field is not sufficient; the expert must have actual working experience in the field rather than just teaching it for the opinion to have weight.  At CCI TheDegreePeople.com we vet our experts to make sure they have the right credentials and work experience.  We have an over 90% approval rate for specialty occupation and wage level RFEs.  The more information you can provide your expert about the H-1B job the better the letter will be and the higher chance that you, or your employee or client will have of H-1B visa approval.

For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less and have rush delivery options for the last minute.

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What is Different about the FY2020 H-1B Lottery Beginning April 1st?

This year, there have been some changes made to the H-1B lottery process and to approval adjudication. 

As in years previous, 65,000 H-1B visas are available for beneficiaries with US Bachelor degrees or higher or their equivalent, and 20,000 H-1B visas are allotted for beneficiaries with advanced degrees of US Master degree or higher.  What is different about this year is that in previous years the 20,000 advanced degree visas are selected in the first lottery, and then the visas left over are thrown in with the second general lottery for the remaining 65,000 visas.  This year, the general lottery will happen first.  Then, the remaining petitions for beneficiaries with advanced degrees will enter into the lottery for the additional 20,000 visas.  This is good news for advanced degree holders.

The second difference is that this year USCIS adjudicators have the authority to deny H-1B visas outright without first issuing an RFE to give petitioners a chance to defend and strengthen their cases. 

It is estimated that there will be about 150,000 H-1B visa petitions submitted the first week of April for cap-subject H-1B visas for FY2020.  Last year, the approval rate for H-1B candidates selected in the lottery was 60%, a rate that has been declining since 2016.  Along with this, the approval rate for cases that received an RFE dropped from 83.2% in 2015 to just 62.3% in 2018 with a massive spike in the overall rate of RFE responses from USCIS.

At CCI TheDegreePeople.com, over 90% of our clients who came to us with H-1B RFEs succeeded in getting their RFEs overturned and their visas approved.  We work with difficult cases every year, and this year we urge you to anticipate any RFEs you, or your client or employee’s case is likely to run into BEFORE you file.  This means additional documentation, expert opinion letters from the RIGHT kind of expert, and credential evaluations must be submitted with the initial filing. 

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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Wage Level and Specialty Occupation RFEs: Who Dropped the Ball?

Sometimes it’s the employer’s fault.If the job indicated by the employer on the LCA does not match the position on the H1B petition, or if the job indicated on the LCA is in the “other” category, or doesn’t match the duties of the actual position, or if the wage level set does not clearly meet the prevailing wage for the job, that means the employer is at fault. Consistent answers across forms is essential. If the job in question differs from the duties and responsibilities, or differs from the wage level indicated in the entry for the position in the Occupational Outlook Handbook, the petition needs to clearly explain how these differences fit within the requirements of H1B visa status.Sometimes it’s the beneficiary’s fault.Sometimes beneficiaries don’t actually have the correct degree for the H1B job. Sometimes mistranslated educational documents, diplomas that are mistaken for degrees, and other issues that arise my virtue of hiring across cultures and educational structures hinder the approval process.Sometimes it’s the evaluator’s fault.If you or your employee or client has education from outside of the United States or a degree that is not an exact match for the H1B job, a credential evaluation is needed to fill in the gaps with a close evaluation of the course content and work experience with regards to the job in question, and specific H1B eligibility requirements. If the credential evaluator relied on online databases like EDGE to write the evaluation, or if the credential evaluator did not ask about the job or the visa, chances are the evaluation did not address all of the questions CIS must answer to approve the visa.Sometimes it’s no one’s fault. CIS approval trends change every year, which makes it difficult to predict what they will hone in on next. Sometimes mistakes are made on the bureaucratic end and you receive an RFE for evidence clearly provided in the initial H1B petition. If this is the case, you still have to answer it.It’s important to note that finding out who dropped the ball doesn’t have to be about pointing fingers or condemning a member of the H1B team. The key here is to find out how to solve the problem of the RFE and get it overturned.At TheDegreePeople we work with difficult RFEs every year, and we always find creative solutions to even the most complex and convoluted RFEs. Let us help you. 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.]]>

Attention: H1B Filing Opens TODAY!!!

nd filing season for H-1B visa petitions officially opens. USCIS will continue to accept petitions until the cap of 65,000 visas plus an additional 20,000 for candidates with masters degrees or higher is filled, or for at least five business days.For the past few years, the cap has been met before the mandatory five business days is up, so that means you have to file THIS WEEK for you, or your employee or client to have a shot at making the H-1B lottery for FY2019.Last year, we saw an unprecedented number of RFEs, especially targeting computer programmers. This year, make sure you take steps to preempt an RFE or rejection. Don’t fall into common RFE traps by taking these precautions:

  1. Consistent Answers – make sure what is entered on the LCA matches the petition, including the job title and description.
  2. Start Date is NO EARLIER THAN October 1st 2019.
  3. Borderline jobs that don’t necessarily require a US Bachelors degree or higher according to the Department of Labor’s Occupational Outlook Handbook are accompanied by a detailed job description and expert opinion letter to prove specialization.
  4. The beneficiary’s degree or degree equivalency specialization matches the job title or is accompanied by a credential evaluation.
  5. Degrees earned outside of the US, incomplete college, or mismatched degree specialization is accompanied by a credential evaluation.
If you, or your employee or client needs a credential evaluation or expert opinion letter, don’t file the petition without one. We have credential evaluators and experts on hand 24/7 ready to write the evaluation or expert opinion letter you need, or your employee or client needs for visa approval. We offer rush delivery options at affordable prices down to as fast as 12 hours by the clock, and we work off of emailed copies of educational documents. Time is of the essence. Simply visit ccifree.com/ to get started now!]]>

Countdown to April 2nd: Your H-1B Last Minute Checklist

nd and is projected to exceed the cap of 65,000 visas plus an additional 20,000 for candidates with masters degrees or higher by Friday, April 6th. That means, you have to be ready as soon as filing begins to ensure you, or your employee or candidate makes the H-1B lottery.Don’t let the last minute lure you into filing a sloppy or incomplete petition. Before you file, make sure that the answer and information are consistent across all documents including the LCA, the petition, and all documentation describing the duties and requirements for the job. Inconsistent answers will likely trigger an RFE, and a closer scrutiny of the case.Common education RFEs occur when a client has a degree specialization that doesn’t match the job, incomplete or generalized education, or a degree from outside of the United States, and the petition is not filed with a credential evaluation that clearly articulates the academic value of your or your employee or client’s education and work experience in terms of US academic value. It is also important to verify that the degree was earned in an accredited institutions.If you or your client or employee has one of these educational situations, it is important to order a credential evaluation to file WITH the H-1B petition come April 2nd. A work experience conversion may be necessary to account for the gaps between your education, or your client or employee’s education and H-1B educational eligibility requirements.Last year, CIS issued a record number of RFEs for H-1B petitions, especially for beneficiaries working as computer programmers at level 1 wages. If your client has a borderline job that doesn’t ALWAYS require a US bachelors degree as a minimum requirement according to the US Department of Labor’s Occupational Outlook Handbook, your case, or your client or employee’s case will need additional evidence including an expert opinion letter to prove why this position is uniquely specialized.There are some situations that are RFE magnets. If you, or your employee or client:• Has a degree from outside of the US,• Has a three-year bachelors degree,• Has an incomplete degree or no college at all,• Has a generalized degree or a degree in a major that doesn’t exactly match the H-1B job, or• Works a borderline occupation where it’s unclear whether the educational qualifications meet H-1B requirements for specialization,You need to know before you file and address the situation accordingly to preempt an RFE.At TheDegreePeople.com, we work with difficult H-1B cases and H-1B RFEs every year. We know what triggers and RFE and we know how to take steps to effectively preempt them. USCIS is always a wildcard, so we keep an eye on their approval trends every year. For a free review of your case, or your client or employee’s case, visit ccifree.com/. We will get back to you in 48 hours or less with a full analysis, pre-evaluation, and our expert recommendations on what to do to avoid an RFE.]]>

Everything You Need to Know About the H-1B Cap

Monday, April 2nd 2018 and is likely to only run through Friday, April 6th 2018. This is because once the number of petitions has exceeded the annual cap, CIS shuts its doors to more petitions. However, CIS must continue to accept petitions for five business days even if the cap is exceeded. In the last five years, the H-1B cap – including the 20,000 additional visa slots for beneficiaries with masters degrees or higher – was reached in the first five business days. Last year, CIS received about 199,000 during the five-day filing period.This filing period is for employment that begins on October 1st 2018, the start of the fiscal year 2019 that runs October 1st 2018 to September 30th 2019. If the start date is set for any earlier than October 1st 2018, the petition will be rejected.If the cap is exceeded, CIS runs a computer-generated random lottery to select which petitions will be considered for visa eligibility.That means, to ensure you or your client or employee has a shot at H-1B visa approval, you must:

  1. Be ready to file the petition on Monday April 2nd.
  2. Have an impeccable petition with all of the necessary forms, evidence, and documentation to ensure that once selected the petition will be approved.
If you miss this upcoming filing period, you will not be able to file again until April of 2019, and your employee will not be able to start work until October 1st, 2019. That means it’s time to get those petitions organized.For a free review of your case, or your client or employee’s case, visit ccifree.com.]]>

Prepare for Tough RFEs for Specialty Occupation this H1B Season

ccifree.com/ or simply reply to this email for a no cost and no obligation full review of your case, or your client or employee’s case. At TheDegreePeople.com, we work with RFEs every year. We know what triggers them, and we know how to answer them, and most importantly, we know how to prevent them. We will review the entire case, and get back to you within 48 hours with a full analysis, pre-evaluation, and our recommendations moving forward.]]>

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