If the petition process and first round of H1B RFEs aren’t stressful enough here comes round two of RFEs. When CIS finds something wrong with a petition, it opens the floodgates to finding more details out of place that would have otherwise gone unnoticed. The best way to prevent round two of RFEs is to prevent round one by identifying the common RFE triggers inherent to the situation in your case and plan accordingly, but this doesn’t always work.If you or your employee or client is facing down RFE round two, don’t panic. The petition has not been denied, CIS just needs more information to make a decision.The trick with any RFE is not to get caught up in the wording or individual demands, but rather to go back to the basics and see where evidence and analysis is lacking. To qualify for H1B status, the job must be a specialty occupation, which means as an industry standard or a standard hiring practice a minimum of a US bachelor’s degree or higher in the specialization is required for entry into the occupation. The beneficiary must hold a US bachelor’s degree or higher or its acceptable equivalency in the exact field of the specialty occupation. The employer must be economically viable and pay the beneficiary the prevailing wages and benefits for the specialty occupation, and there must be an employer-employee relationship in which the employer can hire, fire, promote, supervise and otherwise control the work the beneficiary does.Read the RFE and identify which of these requirements CIS is having trouble adjudicating. Is it the job? Is it the education? Is it the working conditions? At TheDegreePeople we work with difficult RFEs every year and we know how to identify where cases are lacking in evidence and analysis, and which common RFE traps beneficiaries fall into as CIS approval trends change from year to year. Let us review your case for free before you answer that second round of RFEs. Visit ccifree.com and we will get back to you in 48 hours or less.]]>
ccifree.com.. We will get back to you in 48 hours or less with our full analysis, pre-evaluation, and recommendations moving forward.]]>
ccifree.com/. We will get back to you in 48 hours or less with our analysis of your case and our recommendations.]]>
specialty occupation according to USCIS statutes. Here is where it gets murky:There are two very similar but profoundly different definitions of specialty occupation within the same CIS statute.INA § 214(i)(1) defines it as, “An occupation that requires theoretical and practical application of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”INA § 214.2(h)(4)(ii) holds the same definition EXCEPT instead of stating the degree must be in THE specific specialty, it states itmust be in A specific specialty.Employers will hire H-1B employees for positions when they have a degree that exactly matches the job, or that is related to the job in such a way that there is significant specialized knowledge and skill overlap. This still tends to be a narrow range of degree specializations. In the past, CIS has approved visas according the second definition that allowed for beneficiaries with degrees in related fields that did not exactly match the H-1B job because the job requiring that minimum credential would qualify for H-1B eligibility under that definition. In recent years, CIS has switched to the first, strict definition that requires beneficiaries have “a bachelr’s degree or higher in THE specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”However, if you, or your employee or client receieves an RFE for specialty occupation, disputing these definitions will not help you. The important part to focus on in BOTH of these definitions is: “or its equivalent.”In the Tapis International v. INS decision, it was established that equivalent encompasses academic and experienced-based training in various combinations. This means that a job or a candidate doesn’t necessarily need a bachelor’s degree in THE specific speciality to be eligible for H-1B. There are four options, one of which must be met:
- The job in question normally requires a minimum of a US bachelors degree or higher for entry into the position in the United States.
- This minimum degree requirement is normal for this job in similar organizations in the industry.
- The job in question is uniquely complex to need a US bachelors degree or higher as a minimum requirement for entry into this position.
- The employer sponsoring the H-1B beneficiary commonly requires a this degree as a minimum for entry into the position, and this can be proven by their hiring history.
firstname.lastname@example.org:• LCA• Beneficiary’s Resume and Educational Documents• Employer Support Letter• Detailed Job Description• RFEWe will get back to you in 48 hours or less with a full review of the case and our recommendations on what to do next.As we’re wrapping up RFE season, we’re coming right up on filing season. While we won’t know whether preventative measures will work for this RFE until next RFE season, there are some steps you can take to reduce the risk of dealing with the Level 1 Wages RFE again. If the job can be set at Level 2 Wages, or the job title can be classified as a different occupation, including these changes in the petition and on the LCA may help prevent the Level 1 Wages RFE. Remember, the LCA and the petition must be consistent, so whatever you enter in the LCA must be the same in the petition. The job title must match the job description, so it’s important to be very careful when taking this preemptive measure. We can consult with you on this. If can also be helpful to include an expert opinion letter from an RFE response in the initial petition to clear up the misconception about Level 1 Wages and entry level positions from the start.To preempt RFEs that we have seen coming in after having answered the Level 1 Wages RFE, it’s always a good idea to include a thorough credential evaluation in the initial H1B petition to close any gaps between your or your employee or client’s education and their H1B job. Foreign degrees, incomplete or nonexistent college education, and generalized degrees or degrees in specializations that are not an exact match for the job title all require credential evaluations to clearly show CIS that the education meets H1B requirements. If you’re not sure whether you or your employee or client meets H1B educational requirements, let us review the case before you file in April.]]>