When USCIS finds one issue in an H-1B petition, they tend to find more. That’s because an RFE issue raises a red flag that triggers a close scrutiny of the rest of the petition. The most common Double RFE we see is the Specialty Occupation + Wage Level Issue RFE.
In this case, Wage Level tends to trigger Specialty Occupation, and this Double RFE has hit computer programmers the hardest. Here’s how it works: USCIS sees that the job is set at level one wages, and so they assume that it is an entry level position. Then, they go to the US Department of Labor’s Occupational Outlook Handbook and read the passage for the entry level position. Often, these entry level positions NORMALLY require a minimum of a bachelor’s degree to be hired, but NOT ALWAYS.
USCIS has been caught illegally adjudicating specialty occupation based on “ALWAYS” instead of what the regulation actually, reads, which is “NORMALLY,” thereby making the exception the rule of determination. This makes H-1B employees starting at level one wages especially vulnerable to the Double RFE.
If you, or if your employee or client is at this wage level – ESPECIALLY if the job is computer programmer – you need to make it very clear that the wage level is set appropriately. Explain all of the factors that went into the wage level determination, along with the wage level for the same position at different companies in the industry and geographical location of the H-1B job. You also must be clear that the job requires theoretical and practical application of skills and knowledge learned in a bachelor’s degree program in the field of the H-1B job.
Along with this additional documentation, include an expert opinion letter written by a professional with extensive experience working in the field of the H-1B job. This expert should have experience hiring employees to the position in question. This letter can address both specialty occupation and wage level issues. You must provide as much evidence and documentation as possible so the expert can write a strong letter to lend authority to your case.
At CCI, TheDegreePeople.com, we work with experts in all H-1B fields to write the letters applicants need to address these issues before they turn into RFEs. Applicants that come to us for case reviews and expert letters for their initial petition do not come back with a Double RFE. At the same time, we have seen that Double RFEs are successfully answered over 90% of the time with this added documentation and expert opinion letter included in the response.
USCIS faced litigation last year, which included three separate judicial rulings against them for wrongly denying H-1B visas. USCIS knows that these petitions may end up in front of judges. When you file the initial petition or RFE response, make sure it is air-tight and clearly shows that H-1B eligibility requirements are met, and taking USCIS adjudication trends into account.
For a free review of your case visit www.ccifree.com. We will respond in 4 hours or less.
Sheila Danzig is the executive director of CCI, TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.