What do you do when you get an RFE with absolutely everything in it? Before last year, the Nightmare RFE was the scariest prospect for H1B beneficiaries, being virtually impossible to answer within the allotted timeframe by its own instructions.
This year, we’re seeing the Nightmare RFE with specialty occupation, wage level, and education issues included. When CIS finds one problem with a petition, they usually find more, which can cause a cascading effect that leads to a virtually unanswerable RFE like the ones we’re seeing this year.
If you, or your employee or client receives this kind of RFE, the first step is to go back to the basics. Since every H1B requirement is in question, all you have to do is go back to the fundamental guidelines of this visa. First, the H1B job must be a specialty occupation, meaning it requires a minimum of a US bachelor’s degree or higher for entrance into the position. Second, the H1B beneficiary must hold that degree in the field of the H1B job, or have the equivalent of the necessary degree. Third, the employee must be paid the prevailing wages and benefits for that position, in the industry for companies of that size in that geographic location. The employer must be economically viable, and there must be an employer-employee relationship in which the employer controls the work the employee does.
To prove the job meets H1B standards, you will need to show that it meets H1B educational requirements for specialty occupations. Provide the ad for the job and ads for the same position in similar companies in the industry. Provide documentation of past hiring practices that shows employees holding this position historically require this minimum advanced degree requirement. Detail the duties and responsibilities of the job and highlight how they necessitate the employee having earned the advanced degree to learn the specialized skills and knowledge the job requires.
When it comes to education issues, you or your client or employee must have a US bachelor’s degree in the exact field of the H1B job, or its equivalent. That’s where things can get tricky. If the beneficiary has ANYTHING BESIDES a US bachelor’s degree in the exact field of the H1B job you will need to include a credential evaluation that takes both the job and the visa into consideration that fills in the gaps between the credentials the beneficiary has, and the credentials the beneficiary needs to get the RFE overturned.
For proving that working conditions and compensation meet H1B requirements, include a copy of the employee contract, including salary or wage documentation. You will need to explain the factors that went into deciding the wage level for the job, and evidence that shows this wage level is an industry standard for that position in that geographic location for companies of that size. If the wage level varies, you need to explain exactly why.
These complex RFEs also require an expert opinion letter that can cover occupational issues – both regarding specialization and working conditions. Both issues can be covered in the same letter to explain and verify the evidence you provide in your RFE response.
At TheDegreePeople.com we understand that when CIS finds one problem with a case, that’s rarely the end of it. We work with difficult cases every year regarding education and occupation. For a free consultation visit ccifree.com. We will get back to you in 48 hours or less.
This article was written by Rebecca Little