If an RFE arrives instead of approval, that means your H-1B petition did not make the clear case that they job, the employer, and the beneficiary met eligibility requirements.  Someone dropped the ball.  The key to answering this RFE is to find out who it was – not to place blame, but to get the visa approved.

Sometimes the one that dropped the ball is USCIS.  Over the past better part of a decade, they have been a wild card when it comes to approval trends.  They shirked their own specialty occupation eligibility requirement by adjudicating usually as always when it comes to minimum educational requirements, effectively making the exception the norm and causing all kinds of problems.  They assume level one wages implies an entry level position.  They started only accepting educational degrees earned in the exact major of the H-1b job rather than in a related field.  They started requiring a complete itinerary of the work to be performed by the H-1B employee for the duration of the visa, which blindsided H-1B beneficiaries employed as consultants.  Maybe the adjudicator was having a bad day or in a rush to get home.  All of these factors could contribute to your RFE.  The bad news is, if USCIS is to blame, it’s still on you to fix it.

Sometimes the RFE was triggered because answers, name spellings, and dates were not consistent across all documents.  Inconsistencies trigger red flags that lead to RFEs that you now have to answer.  Whoever proofreads the petition needs to pay extra close attention to this detail in the RFE response.

Sometimes it’s the employer’s fault.  Did they provide enough evidence and documentation as to their economic viability?   Did they provide evidence of past hiring practices and a detailed job description to show the occupation is specialized?  Did they clearly show their ability to control the employee’s work even at third-party worksites and show that the H-1B employee has a full work itinerary for the duration of the H-1B visa?  All of these factors are essential for visa approval.

Sometimes it’s the employee’s fault.  It is not uncommon for an H-1B beneficiary to be misleading about the academic value of their degree, either on purpose or by accident.  For example, different degrees have the same title in different countries while the same degree can have a completely different title somewhere else.

Sometimes it’s the credential evaluator or the expert who wrote the opinion letter’s fault.  The evaluation must be written uniquely taking the education, the job, the visa, and USCIS approval trends into account.  This will often require a progressive work experience conversion written by a professor with the authority to grant college credit for work experience.  A cookie cutter evaluation won’t cut it.  On a similar vein, USCIS will only accept letters from experts with extensive experience working in the field of the H-1B job as valid.  Simply instructing in the field will not suffice.  Ideally, the expert has been in leadership roles and made hiring decisions regarding the position in question and supporting positions.

Identify who dropped the ball and identify what eligibility requirements have not been met.  Then fortify these areas accordingly with added evidence and documentation, the right credential evaluation, and an expert opinion letter from the right kind of expert.  Sounds exhaustive?  With the proper guidance, it doesn’t have to be.

Let us review your RFE for free to identify areas of weakness and consult on how to strengthen your case to get that visa approved.  Visit www.ccifree.com for a free review of your case.  We will respond in 4 hours or less.

Sheila Danzig

Sheila Danzig is the director of CCI TheDegreePeople.com.  Sheila specializes in overturning RFEs and Denials for work visas.

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