The H-1B approval rate for the second quarter of FY2020 came in at 87.1%, a nearly 4% rise from the same time last year. However, the RFE rate remained high, at 35.8%, with a 68.2% rate of approval after response. That means around one in every three H-1B petitions is likely to receive an RFE, and to respond successfully, the first step is to determine who is at fault so you can best determine how to strengthen the case effectively.
Sometimes it’s the beneficiary’s fault.
Did the beneficiary provide poor information or documentation? Did they provide false information regarding their education or work history? Did they have a mismatched degree, incomplete college, or a degree from an unaccredited institution? Were their credentials not what they thought they were? These are all situations in which the beneficiary – knowingly or innocently – caused the RFE to occur. The trick here is to find where false information or inadequate qualifications occurred and if possible, find a workaround, which there typically is. If the problem is education there are many pathways to the proper credential equivalency, with the right credential evaluation that takes course content and work experience into account.
Sometimes it’s the employer’s fault.
H-1B employers must show that they are financially viable, and able to pay the H-1B employee prevailing wages without compromising their budget. They must show that the position meets specialty occupation requirements and in many cases have to back this up with documentation of past hiring practices. There must also be a clear employer-employee relationship in which the employer can hire, fire, promote, and otherwise control the work the employee performs. Recently, one of the responsibilities of the employer in the petition is to provide a complete itinerary of the work to be performed by the employee for the three-year duration of the visa. If any of this information is missing or lacking in documentation, the employer must provide this for the RFE.
Sometimes it’s the lawyer’s fault.
This is uncommon, but sometimes a petition is filed incorrectly. In most cases, it is not the lawyer’s fault.
Sometimes it’s the credential evaluator’s fault.
If education issues were anticipated, a credential evaluation was ordered, and an education RFE still arrived, it may be the credential evaluator’s fault. To be effective, each evaluation must be written specifically for the case in question, taking into account the visa, the job, USCIS approval trends, and the education and work experience of the beneficiary. That means using college credits and work experience to fill in any gaps between the credentials the beneficiary has, and the credentials the beneficiary NEEDS for visa approval. The education must be the academic equivalent of a US bachelor’s degree (or higher, if required) in the exact field of the H-1B job. Any work experience to college credit conversions must be written by a professor with the authority to grant college credit for work experience.
Sometimes it’s the expert’s fault.
If specialty occupation, employer-employee relationship, or wage level issues were anticipated, an expert opinion letter was ordered, and an RFE regarding the issue still arrived, perhaps it’s the expert’s fault. The RIGHT expert whose opinion will hold weight with USCIS has preferably at least a decade of work experience directly in the field of the H-1B job. Instructors do not meet this requirement. The expert should have experience making hiring decisions within the industry, and have a depth of understanding of a wide range of positions in the field. On the other hand, even the right expert cannot write an effective expert opinion letter if they are not provided enough information. In that case, it is once again, the beneficiary’s or the employer’s fault.
Sometimes it’s USCIS’ fault.
This is often the case. In three different judicial decision this past year, USCIS was found guilty of illegally denying H-1B petitions with adjudication decisions not based in law. The specific situation is that specialty occupation, by legal definition “normally” require a bachelor’s degree or higher as a minimum qualification. USCIS was rejecting H-1B petitions for jobs that “normally” require this because, according to their reasoning, employers will sometimes hire employees without this minimum academic qualification, in consequence making the exception the norm with no legal footing. Specialty occupation RFEs tend to be USCIS’ fault. Adjudication errors – or blatant disregard for the laws governing the H-1B program – are common causes of all kinds of RFEs. Unfortunately, it is still on the applicant to successfully answer the RFE. Identify which areas of eligibility need to be fortified, and understand how to successfully address USCIS approval trends, EVEN if they are not technically right. At CCI TheDegreePeople.com, we always keep an eye on USCIS approval trends and every year we develop creative solutions to even the most frustrating of RFEs.
If you, your employee, or your client receive an H-1B RFE, let us review your case for free. 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.