Over the better part of the past decade the rate of H-1B RFEs – including complex RFEs like the Triple Threat and the Nightmare – have been high. At CCI TheDegreePeople.com we work with difficult cases and RFEs every year and have identified red flags that USCIS adjudicators are looking for to issue RFEs. The trick is to catch them in your own case before you file so you can fix them and provide additional evidence and documentation to strengthen weak areas.
If information is not consistent across all documents, including resumes and letters of support, USCIS will notice. This triggers a close examination of the case and glitches that would likely slide will become RFE issues to deal with. Be sure to go over all forms and supporting documents for consistency before you file.
Mismatched or Missing Education
If the beneficiary’s degree is anything except a US bachelor’s degree or higher in the exact field of the H-1B job, this will raise a red flag UNLESS a credential evaluation is included in the initial petition. While there are many educational pathways, USCIS must see that the beneficiary has attained the academic equivalence of a US bachelor’s degree or higher in the exact field of the H-1B job to avoid any issues. Foreign education must be evaluated for US academic equivalence. Beneficiaries with degrees in related, unrelated, or generalized majors, incomplete college, or no college must include an evaluation that shows they have completed the equivalency of the needed degree in the major of the H-1B job. This means taking course content, non-academic training, and progressive work experience into account.
Some or All Work will take place at a Third-Party Worksite
IT consulting firms are most at risk for this red flag. If the H-1B employee will work partially or completely at a third-part worksite, or if work is attained on a per-project basis, USCIS will take notice. To address this red flag, include a complete itinerary of the work the H-1B employee will perform for the duration of the three-year visa period including client or customer contact information to verify. Document how the employer will be able to control the work of the H-1B employee when working at a third-party worksite. The goal is to show USCIS that the H-1B employee will always have work and that this work will always be controlled by the employer during the H-1B visa period.
Occupation Does Not ALWAYS Require a Bachelor’s Degree
Check the US Department of Labor’s Occupational Outlook Handbook’s entry for the H-1B position to make sure that it ALWAYS requires a minimum of a US bachelor’s degree for entry into the position. According to statute, a position must normally have this degree requirement to achieve the specialty occupation requirement. However, USCIS has been regularly adjudicating it as “always” effectively making the exception the norm. If this is the situation for your case, you need to use another avenue to meet the specialty occupation requirement showing that the position in question is uniquely specialized as to have a minimum requirement for this degree. This means including a detailed breakdown of the duties and responsibilities of the job and an expert opinion letter written by a professional with at least a decade of experience working in the field of the H-1B job. Ideally, this expert has experience hiring to the position in question and can show how skills and knowledge attained through completion of a bachelor’s degree program or higher applies directly to the duties and responsibilities of the job.
Level One Wages
The USCIS adjudication trend when it comes to level one wages has been to assume that the wage level implies that the position in question is entry level. This can trigger specialty occupation issues because entry level positions are often the ones that normally but not always require a US bachelor’s degree minimum. On the other hand, since the H-1B employee must be paid the prevailing wage, if the position is not entry level, USCIS adjudicates the petition as though the employee is being underpaid. This issue can be addressed with an expert opinion letter showing that not only is the job specialized, but the starting wage is an industry norm. The employer must also provide additional documentation as to why the wage level is set as it is. Many H-1B employees have just completed college in the US so they have educational training but limited or no work experience and require higher levels of training and supervision to start.
Before you file, let us review your case to identify red flags and areas of weakness. For a free review of your case visit www.ccifree.com. We will respond in four hours or less.
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.