The second quarter of FY2020 brought a slight increase in H-1B RFE rates to 35.8%, which is up 0.5% from FY2019’s second quarter. By the same comparison, H-1B approval rate jumped up 4% to 87.1%. The rate of approval following an RFE is 68.2%, which may seem low, but is a 10% increase from this time last year.
Over the course of the past year, there have been three decisive judicial decisions penalizing USCIS illegally denying H-1B visas. These numbers show us that USCIS is sticking with its strict – and in many cases, illegal – approval trends. We expect this litigative trend to continue until the RFE rate drops.
What does this mean for H-1B applicants and their sponsors? Anticipate common RFEs. Specialty occupation, wage level, and employer-employee relationships have become some of the most common RFEs since USCIS began misreading their own approval rules.
USCIS defines a specialty occupation as normally requiring a minimum of a bachelor’s degree to perform. Since 2017, USCIS has been adjudicating this as ALWAYS instead of NORMALLY, making the exception the rule. If you have, or if your employee or client has a job that list listen in the Department of Labor’s Occupational Outlook Handbook as usually but not always requiring this minimum advanced degree, you need to provide additional evidence about the specific job in question. This evidence must show that specialized skills and understanding is needed and how it is applied in the day-to-day duties and responsibilities of the job. Along with this, an expert opinion letter is advised to lend authority and analysis to the additional evidence and documentation provided.
H-1B employees with low wage level starting salaries have run into trouble in recent years. This is because USCIS has been associating level one wages with an entry level position in the adjudication process. If the entry level position does not always require the employee to have a bachelor’s degree, the petition receives a double RFE for specialty occupation and wage level issues. To prevent this issue, include a detailed breakdown of the factors that went into setting the wage level to show that it was set appropriately for the position, and set at the prevailing wage. The same expert opinion letter than can prevent or address the specialty occupation issue can and should incorporate any wage level issues anticipated.
Employers now must prove that there will be work for the H-1B employee throughout the duration of the H-1B visa period of three years. This can be difficult for consulting firms, which is why in past years this was not a requirement. Now, petitions that do not have a complete itinerary of projects, clients, and client contact information are receiving employer-employee relationship issue RFEs. We advise that employers work with their clients to create an itinerary that covers the entire three-year duration and include this with the initial petition.
While 87.1% of initial petitions were approved in the second quarter of FY2020, only 68.2% of RFEs were overturned. The best way to beat an RFE is to prevent it. Do not file without a complete review of your case to see where additional evidence and documentation – including credential evaluations, expert opinion letters, and work itineraries – are needed.
For a free review of your case, visit www.ccifree.com. We will respond in 4 hours or less.
Sheila Danzig, EdD
Sheila Danzig is the executive director of CCI, TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.