Sheila Danzig

RFE rates are still high for H-1B petitions, and processing delays due to the COVID-19 pandemic are making it even harder for employees to get their visas approved to meet their start dates. 

Having to answer one or two – and sometimes as much as three – rounds of RFEs have been pushing back employee start dates and hurting the businesses that employ them for years now.  This problem has been compounded due to social distancing measures in place at USCIS.  If you or your employee or client is filing for H-1B status, avoiding an RFE is more important now than ever.  But how?

1. Include a credential evaluation in the initial petition.

It is essential to clearly show USCIS that the H-1B employee has the correct degree in the correct field of the H-1B job, or its clear equivalent in education and work experience in accordance with US educational standards.  The only situation in which a credential evaluation would NOT be essential is if the employee holds the required degree (which must be a Bachelor’s or higher) earned from an accredited US college or university, in the EXACT field of the H-1B job.  This becomes a problem because employers commonly hire employees with degrees in related fields with work experience directly in the field.  These qualified employees need a credential evaluation, even if the degree was earned at an accredited US institution.

If you, or if your employee or client has incomplete college, no college, unaccredited college, or a degree from outside of the United States, a credential evaluation is needed to prevent an RFE triggered by education issues.  If you, or if your employee or client has a generalized degree, or a degree in a related field that is not an EXACT match for the H-1B job, a credential evaluation is needed to prevent an RFE triggered by education issues.  These evaluations take specific course content and progressive work experience into consideration when writing the credential evaluation to meet the academic requirement, and field specificity requirement.

2. Include an expert opinion letter in the initial petition.

An expert opinion letter that addresses wage level, specialty occupation, and employer-employee relationship issues goes a long way to preventing RFEs triggered by any of these common issues.  Remember, when USCIS finds one red flag in a petition, this usually leads to close scrutiny of the entire petition and can lead to highly complex RFEs that are not easily answered. 

The key to obtaining an EFFECTIVE expert opinion letter is finding someone to write it who has extensive experience working in the field of the H-1B job, including positions of leadership and authority. Ideally, this expert has made hiring decisions regarding the H-1B position in question, and therefore can lend an opinion about the complexity of the position, and prerequisites for hiring consideration, as well as an authoritative opinion about the nature of the work, wage level considerations, and the industry.  USCIS will not consider expert opinion letters from those who have only been instructors in the field.  Once you have found your expert, it is on your team to provide them with as much information about the company, the position, visa requirements, and the employee as possible so they can write an impeccable letter specifically applicable to the situation.

3. Proofread for consistent answers and file in order.

Make it easy for the adjudicator to read the petition, include all parts in order, and make sure answers are CONSISTENT across documents.  This includes dates, spelling, names and titles.  Any inconsistencies across documents will trigger a closer scrutiny of the case, which will likely lead to an RFE. Having an outside party review the petition before submission goes a long way to catching any weak points where additional evidence and documentation is needed, or where the case raises questions that should be answered before it ends up on a USCIS adjudicator’s desk.

At CCI TheDegreePeople.com we work with difficult cases, RFEs, and Denials every year.  We know what triggers them; we know how to identify weak spots in petitions, and we know what additional evidence and documentation strengthens those weak spots.  Let us review your case for free before you file.  Visit www.ccifree.com and 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.

The E-3 work visa is very similar to the H-1B visa, except that only Australian citizens are eligible.  That means if you are an Australian citizen with a specialty occupation job offer in the United States, this is the visa for you.

There are 10,500 annual E-3 visas, not including E-3 visa extensions or transfers.  These visas cover a two-year period with unlimited extensions in most circumstances.  Qualified applicants are Australian citizens with legitimate US job offers for specialty occupations.  A specialty occupation is a job that requires a minimum of a US bachelor’s degree or higher as a minimum qualification to be hired to the position. 

The applicant must be paid the higher of the actual or prevailing wage for the position.  The actual wage is the wage the E-3 employer pays its other employees performing the same job as the E-3 position with similar experience and qualifications.  The prevailing wage is the average wage paid to employees holding the E-3 position in the specific geographical location of the E-3 job. 

The E-3 applicant must also hold the required minimum degree or its equivalent in years of progressive work experience.  Three years of work experience in the field of the E-3 job in which the applicant took on progressively more responsibility and the nature of their work became progressively more specialized and complex can be converted into one year of college credit.  That means, in absence of the required bachelor’s degree, the applicant must have at least 12 years of progressive work experience in the industry.

If you, or if your employee or client is seeking E-3 visa status, it is essential to make sure that you provide added evidence proving they meet specialty occupation requirements and that their credentials match the E-3 job requirements.

For a free review of your case, visit www.ccifree.com.  We will get back to you 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.

One of the H-1B visa eligibility requirements is that there must be an employer-employee relationship.  What this means is that the employer must be able to hire, fire, promote, and otherwise control the work the H-1B employee performs.

Consulting firms are vulnerable to employer-employee relationship issues because of the independent and irregular nature of the work.  For this reason, these employers must provide added evidence and documentation to prove this relationship in the position.  This means providing a copy of the employee contract, a detailed breakdown of the duties and responsibilities of the position, how employee performance is measured by the employer, and a complete itinerary of the work the H-1B employee will perform for the three-year duration of the H-1B visa.

In recent years, USCIS approved these visas without a work itinerary, but since 2017 petitions that do not include this documentation have been consistently met with RFEs and Denials.  Including this additional documentation along with a complete itinerary of work including clients and their contact information successfully can prevent and address these issues.

For a free review of your case, visit ccifree.com.  We will respond in 4 hours or less.

Sheila Danzig

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

In the past year, USCIS faced three convictions regarding illegally denying RFEs due to specialty occupation issues.  Despite these judicial decisions, USCIS continues to adjudicate H-1B petitions wrongly, which means H-1B beneficiaries still must take steps to prevent and fight these specialty occupation RFEs.

Here is the issue: USCIS defines a “specialty occupation” as a job that normally requires a minimum of a bachelor’s degree or higher to perform.  Instead of adjudicating the job based on “normally” USCIS has been issuing RFEs for jobs that some employers will sometimes hire those without this degree to the position.  In doing so, USCIS adjudicated the exception as the norm without any actual changes to laws regarding this definition.  That means, unless you want to take USCIS to court, you need to prepare for this.  If the entry in the US Department of Labor’s Occupational Outlook Handbook for your job, or for your employee or client’s job states that while a bachelor’s degree is normally a minimum requirement sometimes employees without this degree are hired, you need to take an extra step to protect against a specialty occupation RFE.

At CCI, TheDegreePeople.com, we have been working closely with specialty occupation RFE and Denial cases.  We have found that the best way to prevent and answer this issue is with an expert opinion letter written by an expert in the field of the H-1B job with extensive experience working in the field.  This experience includes hiring employees to the position in question, similar positions, and positions that rely on the person hired to the position in question being fully qualified to do their job.  This opinion letter provides a detailed breakdown of how specific skills and knowledge acquired through a bachelor’s degree program are applied to the duties and responsibilities of the job. 

The more information about the job, the employer, and past hiring practices you can provide to the expert, the better the letter will be.  We have found that submitting an expert opinion letter in the response has a 90% success rate in getting it overturned.  Our clients who get one ahead of time and submit the letter with initial petitions do not come back to us with an RFE later.

Since 2017, positions that had never before been called into question began receiving specialty occupation RFEs and Denials.  We strongly encourage H-1B applicants to include an expert opinion letter regarding specialty occupation issues in the initial petition.

For a free review of your case, visit www.ccifree.com or simply reply to this email.  We will get back to you in 4 hours or less.

Sheila Danzig

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

There are many pathways through education and they don’t all include the classroom.  However, USCIS needs a clear quantitative measure of qualitative learning – whether it’s on the job, from incomplete college, or from an unaccredited program.

H-1B beneficiaries that have the specialized skills and knowledge necessary to perform the specialty occupation but do not have a completed four-year bachelor’s degree should not file without taking additional steps.  It is essential to find out whether or not the school the degree was earned at is accredited or not.  Oddly enough, it is common for H-1B applicants to think their school is accredited only to find out it is not.  If either of these three situations applies to your employee or client, the best way to prevent this RFE is to include a credential evaluation with a work experience conversion in the initial petition. 

This credential evaluation must prove a clear equivalency to a four-year US bachelor’s degree in the field of the H-1B job.  A professor authorized to grant college credit for work experience can write an evaluation that converts three years of progressive work experience into one year of college credit.  Progressive work experience means that education occurred on the job as evidenced by the applicant having taken on progressively more complex work and more responsibility over the duration of the work experience.  It may take up to twelve years of progressive work experience to make this equivalency work.  Credits earned can also be applied to the equivalency. 

If your employee or client received an RFE or Denial for any of these three education issues, a customized credential evaluation that takes work experience and earned college credits, along with the job, H-1B eligibility requirements, and USCIS approval trends into consideration can get it overturned.

At CCI, TheDegreePeople.com, we work with professors who can issue college credit for work experience to write unique credential evaluations tailored to fill in any gaps between the beneficiary’s education and the correct degree and specialization for the H-1B job.

For a free review of your case visit ccifree.com or reply to this email.  We will respond in 4 hours or less.

Sheila Danzig

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

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

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

When USCIS finds one problem with an H-1B petition, they usually find more.  One RFE issue opens the door for close scrutiny of the entire case, and that is how we get situations like the Nightmare RFE.

This RFE is virtually impossible to answer by its own guidelines in the given timeframe and includes absolutely everything.  That’s why this RFE is also called the Kitchen Sink.  How can beneficiaries answer an RFE like this?

The answer is to not get caught up in the wording, but instead go back to the original H-1B eligibility guidelines and work from the ground up based on the guidelines themselves and USIS approval trends.  This means strengthening all areas of the case with additional evidence and documentation to address employer-employee, wage level, and specialty occupation issues.  Include a credential evaluation that closes any gaps between the H-1B beneficiary’s education and the H-1B job, and include an expert opinion letter that strengthens specialty occupation and wage level areas.  For consulting firms and similar companies, include a complete itinerary of the H-1B employee’s work for the entire three-year duration of the visa, along with client contact information.

The more information you can provide in the initial petition, the better chance you have of preventing the Nightmare RFE.  That means including an expert opinion letter, credential evaluation, and work itinerary in the initial petition.  It is essential to keep an eye on USCIS approval trends when crafting the initial petition.  At CCI TheDegreePeople.com, we pay close attention to USCIS approval trends and advise our clients based on common RFE and Denial triggers.  A strong, clear, and well-documented case is the best defense against the Nightmare RFE.

For a free review of your case visit www.ccifree.com.  We will respond in 4 hours or less.

Sheila Danzig

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

While specialty occupation, wage level, and employer-employee issue RFEs have been all the rage since 2017, the classic 3-Year Degree H-1B RFE has not gone away.  H-1B beneficiaries with 3-year bachelor’s degrees earned outside of the United States consistently receive RFEs and Denials for the missing fourth year of college. 

Even though the Indian 3-year bachelor’s degree has the same – if not greater – amount of classroom contact hours as the US 4-year bachelor’s degree, beneficiaries with this degree are consistently hit the hardest.

If you, or if your employee or client has a 3-year bachelor’s degree, the petition will run into issues virtually every time unless you take the one preventative step that works.  That means submitting a credential evaluation with the initial petition that includes a work experience conversion to account for the missing fourth year of college.  With the evaluation, three years of progressive work experience in the field of the H-1B job can be converted into one year of college credit towards a major in that field provided the evaluation is written by a professor with the authority to issue college credit for work experience.

What is progressive work experience?  For work experience to be considered progressive, it must be shown that throughout the duration of the job, the nature of the beneficiary’s work became increasingly complex with increasingly specialized skills.  This shows that education and professional development occurred on the job. 

The right credential evaluation must take the job, the education, and the nuances of H-1B visa requirements into consideration.  If you call a credential evaluation agency and they do not ask about any one of these three factors, hang up and look elsewhere.

Submitting a credential evaluation with a work experience conversion with the initial petition is the best way to avoid these issues.  If it’s too late and you’ve already received the RFE, including this evaluation and work experience conversion with the response is the best way to get that RFE overturned.  At CCI TheDegreePeople.com we work with these cases every year, and our method of writing a credential evaluation with work experience conversion tailored to each beneficiary’s unique situation works virtually every time to get the RFE overturned.

If you, or if your employee or client has a 3-year bachelor’s degree, do not submit that petition or RFE response without the right credential evaluation and work experience conversion.  Let us review your case for free.  Visit www.ccifree.com and we will respond in 4 hours or less.

Sheila Danzig

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

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. 

Specialty Occupation

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.

Wage Level

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.

Employer-Employee Relationship

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.