Sheila Danzig

The word is out!  The United States experienced a record low in population growth over 2021 and the situation is dire.  The United States workforce needs more skilled foreign workers because there are simply not enough American workers to fill the jobs needed to support programs like social security.  Declining birth rates, higher mortality due to an aging population, and lower immigration were all existing factors compounded by the COVID-19 pandemic and 2022 needs to be the year to bounce back.

However, there are changes coming to H-1B and PERM programs that may be at odds with the urgent need to promote the immigration of skilled workers.

In January 2021, the Trump Administration issued a rule to replace the H-1B lottery system with a wage-based selection system.  This rule was supported by the Biden Administration, but vacated by a federal court in June of 2021 with the consent of the Department of Labor.  However, the agency plans to put forth a new prevailing wage rule to take effect on November 14, 2022 with changes based on feedback from this past spring.  This will raise the prevailing wage for both H-1B and employment-based visas, and make changes to the allocation of H-1B visas based on salary.

In addition to changes to the prevailing wage, we expect changes to the H-1B program with regards to the employer-employee relationship and with regards to visa status with change of worksite.

Over the past few years, immigration lawyers have been on the frontlines keeping USCIS adjudicating petitions legally and fighting back unreasonable and unlawful changes to work visa programs.  We have had significant victories and must build on this momentum to keep the work visa programs vital to the economic health of the United States – as well as human rights – moving in the right direction.

USCIS begins accepting H-1B registrations for FY 2023 on March 1, 2022.  That means it’s time to start preparing to file.  At CCI TheDegreePeople.com, we keep a sharp eye on USCIS approval trends and changes to adjudication policy.  We will continue to keep you informed on any changes as the registration date draws nearer, and are available 24/7/365 to review petitions, and offer guidance and feedback before you file.

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

At CCI TheDegreePeople.com we work with difficult cases every year.  It is not uncommon for one RFE to trigger another, leading to as many as three rounds of RFEs before the H-1B visa is approved.  In this case, our client came to us with their second RFE.  The first was for a wage level issue, which triggered a specialty occupation issue. 

When a job is set at level one wages, sometimes USCIS will wrongly assume that it is entry level.  If the passage for the entry level position in the US Department of Labor’s Occupational Outlook Handbook states that employers will usually but not always require the employee to have a minimum of a bachelor’s degree, USCIS will issue a specialty occupation RFE. 

At RFE round two, there is already a massive time crunch to get the H-1B employee to work by their start date to prevent workflow hindrances.  This RFE needed to be answered right now.  Here is what we do in this situation:

The petitioner must provide a detailed breakdown of the duties and responsibilities of the H-1B position, and highlight the skills and knowledge required to adequately perform the tasks of the job.  This should emphasize skills attained from completion of an advanced degree.  Include the ad for the job which required a bachelor’s degree as a minimum qualification, provide proof of past hiring practices with this minimum educational requirement, and provide ads for the same position in similar companies within the industry.

Along with this additional evidence as to the nature of the specialty occupation, we included an expert opinion letter based on this information provided.  At CCI TheDegreePeople.com we work with experts in all H-1B fields who have the credentials USCIS requires to lend weight to their opinion.  All of our experts work in the field of the H-1B job – they are NOT instructors in the field – and have held positions of authority in which they have made hiring decisions regarding the positions in question. 

We included this additional evidence and documentation along with the expert opinion letter in the RFE response.  The visa was approved!

If you are facing a specialty occupation RFE, let us help you get it overturned!  Visit www.ccifree.com for a free review of your case 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.

One recurring education issue facing H-1B beneficiaries is when they have the required degree but in a field that is not an exact match for the H-1B job.  H-1B eligibility requirements state that the beneficiary must hold a minimum of a US bachelor’s degree or its equivalent in a field related to the H-1B job.  However, over the better part of the past decade, USCIS has been issuing RFEs for beneficiaries with a degree specialization that is not an exact match for the H-1B job. 

This is a perennial issue because employers routinely hire employees with degrees in related fields because of the skill and knowledge overlap in addition to work experience in the field of the H-1B job.  Then, USCIS will not approve their visas because the degree specialization is not an exact match.

There are many different educational pathways, and it is the responsibility of the petitioner to clearly show USCIS that the beneficiary has the equivalent of a US bachelor’s degree in the exact field of the H-1B job in terms of US academic value.  Here’s how:

Include a detailed credential evaluation written uniquely to fill in any gaps between the education the H-1B beneficiary has and the education they need to get the visa approved.  This may include a detailed evaluation of the course content of the bachelor’s degree program, professional training, and progressive work experience in the field of the H-1B job.  Three years of progressive work experience in which the H-1B beneficiary took on progressively more complex work or responsibility throughout the course of employment can be converted into one year of college credit in the field.  This conversion must be written by a professor with the authority to grant college credit for work experience.

At CCI TheDegreePeople.com, our international education experts write each credential evaluation uniquely, taking the job, the visa, the education and the work experience into account along with USCIS approval trends.  We work with professors with the authority to grant college credit for work experience to account for the proper degree specialization equivalency.

If you, or if your employee or client received and education H-1B RFE, let our experts help get it overturned!  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.

While the rate of H-1B RFEs has dropped, applicants selected in the second round of this year’s H-1B lottery are seeing a rise in the RFEs instead of outright visa approval.  The start of FY 2022 has come and gone, and RFEs further delay employee start dates, especially if round two arrives.

At CCI TheDegreePeople.com we work with complex RFEs every year and have developed a system for simplifying the process and successfully answering them.  We have consistently answered Double, Triple, and Nightmare RFEs.  Here is how:

First, read through the RFE and then put it down.  Second, go back to the original H-1B eligibility requirements and cross-reference it with the RFE to see where USCIS claims evidence is lacking in regard to the actual requirements. 

• Education issues require a detailed credential evaluation written with the beneficiary’s education, work experience, proffered position, H-1B visa requirements, and USCIS approval trends factored in.  This will close any gaps between the education the employee has and the education the employee needs.
• Address specialty occupation and wage level issues with an expert opinion letter written by an expert in the field of the H-1B job with extensive leadership and field experience.  The stronger the evidence and documentation you can provide, the stronger the letter and the RFE response in general will be. 
• Employer-employee relationship issues can be addressed by showing how the employer will be able to control the work of the H-1B employee even at third-party worksites.  Consulting firms should provide a complete itinerary of work including customer and client contact information for the duration of the H-1B visa.

Always take USCIS approval trends into account because at the end of the day, the adjudicator is who you are writing to.  Take their current trends into account, complete and organize the petition, and triple check to make sure all answers are consistent.  Make it a good experience to read your petition.

When USCIS finds one problem with a petition, this sends off a red flag to look for more, which can snowball into several rounds of complex RFEs.  Before you file an RFE response, let us review your case to make sure you have covered all of your bases. 

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

The numbers are in!  The National Foundation for American Policy reports that the Denial rate for new H-1B petitions for the first two quarters of 2021 is 7.1%.  This is down from 28.6% for the first two quarters of 2020. 

However, this does NOT mean we can relax.  USCIS approval trends are still far stricter than they have been in the recent past, and just because they have loosened doesn’t mean it will be easy to get outright visa approval.  Part of the reason is also likely due to the change in the lottery process.  At CCI TheDegreePeople.com, we suspect that part of the reason for the decline in rate of Denials is because H-1B applicants have gotten better at writing airtight petitions in anticipation of common issues that arise during adjudication. 

Computer programmers, professionals making level one wages, and other H-1B beneficiaries whose jobs do not ALWAYS require a US bachelor’s degree or higher still have to go the extra mile to prevent RFEs and Denials.  Additional evidence and an expert opinion letter are needed.

Beneficiaries with education earned outside of the US, 3-year bachelor’s degrees, incomplete college, no college, or the right degree in the wrong major still need to fortify proof of educational eligibility.  They need to include a detailed credential evaluation that fills in the gaps between the education the H-1B beneficiary has and the educational equivalency USCIS needs to see to approve their visa.  This credential evaluation must take any education and work experience into account, as well as the job, the visa, and USCIS approval trends.

Beneficiaries working as consultants must provide a complete itinerary of the work to be performed for the duration of the H-1B visa period or face employer-employee relationship issues.  Employees working at third-party worksites will also face these issues if additional documentation as to how the employer will be able to control the work of the H-1B employee offsite is not included in the initial petition.

Great work to all of you out there who have not let USCIS off the hook!  Every RFE or Denial successfully answered helped.  Every lawsuit challenging illegal Denials helped.  Every petition filed in anticipation of USCIS unlawful approval trends helped.  We didn’t give up, and we are seeing results!

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

RFE rates have been tough on H-1B beneficiaries hired to the position of computer programmer, particularly if they are making level one wages.  This trend began several years ago when USCIS stopped approving H-1B visas outright for jobs that normally but not ALWAYS required a bachelor’s degree as a minimum educational requirement.  This hit programmers hard and swift, particularly because historically these professionals had no issue with visa approval.

What changed?  H-1B specialty occupation requirements state that the position must normally require a at least a US bachelor’s degree or its equivalent.  USCIS began adjudicating this as always, making the exception the rule for approval.  This was met with lawsuits, but not everyone has the resources to take USCIS to court. 

If you, or if your employee or client is applying for an H-1B visa to work as a computer programmer, especially if the position is set at wage level one, here is how to prevent a specialty occupation RFE:

1. Provide added evidence and documentation that this particular position is uniquely specialized as to require a bachelor’s degree minimum to perform the duties and responsibilities of the job.
2. Provide the ad for the job and ads for the same job in similar companies to show the bachelor’s degree minimum requirement, and proof of past employer hiring practices.
3. Include an expert opinion letter written by an expert with at least ten years of experience working in the field of the H-1B job.  This letter will lend weight to your case.  Ideally, this expert has held positions of authority in the field that involved making hiring decision regarding the position in question, and supporting positions that depended on the employee hired to the position in question having the skills and knowledge necessary for a functioning operation.

At CCI TheDegreePeople.com we work with experts in all H-1B fields with the experience necessary for USCIS to accept their opinion letters as evidence to support your case.  This strategy works to prevent and answer specialty occupation RFEs for computer programmers, and other borderline positions that normally – but not always – require a bachelor’s degree as a minimum educational hiring requirement.

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

The U.S. District Court for the Northern District of California vacated the DHS Final Rule, “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” on September 15^th, in the case Chamber of Commerce, et al., v. DHS, et al.  This final rule, put forth under the Trump administration on January 8, 2021, would have given H-1B visa preference to those with the highest wage levels.  This would have done away with the lottery system and awarded visas based on wage. 

The Biden administration put the Final Rule on hold, to be enacted December 31, 2021 after the U.S. Chamber of Commerce filed a lawsuit challenging the rule.  Then, American Lawyers Association representing five nonprofits and businesses sued the Biden administration.  The onslaught of legal action paid off, preserving the H-1B cap-subject lottery selection process.

But that’s not all.                           

A central aim of the H-1B visa program is to attract foreign students to the United States for Bachelor’s, Master’s, and Ph.D. programs by offering the opportunity to work in the United States after graduation in specialty occupations.  The H-1B visa is a visa of dual intent, so the graduate can choose to pursue permanent residence or not, and the visa period is three years with the opportunity for extension.  However, these recent graduates are entering the field towards the bottom of the pay scale.  This new rule would have effectively excluded them from visa eligibility.

This new rule would have also effectively excluded professionals such as physicists, medical scientists, microbiologists, and other scientists whose positions fall on the lower end of the spectrum as an industry standard from H-1B visa slots. 

While the goal of this new rule was to sequester jobs for Americans, the reality is that we benefit when we can draw the brightest minds from around the world to US industries, and the US workforce does not have the bandwidth to fill the growing number of positions in expanding H-1B eligible industries.  Foreign students and foreign workers actually create MORE jobs for American workers, and create the synergy that keeps US STEM and other industries competitive in the global arena.  We all dodged a bullet. 

At CCI TheDegreePeople.com we are here to help you navigate the changing landscape of visa approval.  As we have seen over the past better part of a decade, USCIS does not need changes in the law to justify adjudication decisions, and not everyone has the means to go to court over an illegal visa rejection.  That’s why we always keep an eye on USCIS approval trends and offer creative solutions to prevent and address approval issues.

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

If you, or if your employee or client meets employment-based green card eligibility requirements, this is the year to file.  In a normal calendar year, there are 140,000 of these green cards available to companies that permanently employ foreign nationals.  This year, starting October 1, 2021, there will be over 290,000 available.

Why is this the case?  Unused family-based visas roll over into the following fiscal year as employment-based visas.  Last year, 150,000 foreign nationals were unable to use these visas because immigration requires an in-person interview at the US consulate in their home country.  Last year, many of these consulates were closed due to the COVID-19 pandemic.  That means the number of employment-based green cards available for the fiscal year of 2022 will more than double.

Employment-based green cards are broken down into five preference categories:

Employment-based first preference:

1. Workers in the arts, sciences, athletics, education, and business fields with extraordinary ability.
2. Outstanding researchers and professors.
3. Multinational managers and executives that meet certain criteria.

Employment-based second preference:

1. Workers whose proffered positions require a US master’s degree or higher or its academic equivalent.
2. Workers who have a National Interest Waiver.

Employment-based third preference:

1. Workers with bachelor’s degrees
2. Skilled workers
3. Unskilled labor workers

Employment-based fourth preference:

1. Certain special immigrants who fall into this category as detailed by USCIS.
2. Religious workers
3. Others as detailed by USCIS

Employment-based fifth preference: 

1. Immigrant investors who have invested at least $1 million
2. Immigrant investors who have invested at least $500,000 in a Targeted Employment Area.

ears, employment-based green card holders can qualify for US citizenship.  In addition to this benefit of employment-based green card status, beneficiaries can travel freely, their children can attend US public schools, and their spouses and children can work in the US.

Not sure what preference category is a fit for your situation?  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 director of CCI TheDegreePeople.com.  Sheila specializes in overturning RFEs and Denials for work visas.

If your H-1B application for FY2021 was rejected, you may get a second chance to file.  USCIS is now accepting petitions from last year that were rejected because the start date was LATER THAN October 1, 2020. 

Why is USCIS doing this?  Last year, under the new two-step application process and the general uncertainties of the pandemic, the H-1B cap was not filled from filings from the initial selection so there was another lottery in August of 2020.  While petitioners had until November 16, 2021 to file, the start date was still required to be set for October 1, 2020.  If this is your situation, it’s time to clean up the petition and resubmit.

The H-1B approval process can be long and arduous with at least one round of RFEs to respond to.  That means to get to work by the start date, applicants need to take steps to prevent issues that may delay visa approval.  At CCI TheDegreePeople.com we work with difficult cases and RFEs every year.  We keep an eye on USCIS approval trends and here is what we have noticed:

• If the beneficiary’s education is ANYTHING BUT a US degree in the exact field of the H-1B job, you will need to include a credential evaluation.  This credential evaluation must take the job, the education, work experience, visa requirements, and USCIS approval trends into account.
• If the US DOL Occupational Outlook Handbook entry for the H-1B position does not ALWAYS require a bachelor’s degree minimum for entry into the position, you need to include additional documentation fortified with an expert opinion letter to meet specialty occupation requirements.  This letter must be written by an expert in the field of the H-1B job with experience working directly in the field and in positions of leadership wherein hiring decisions regarding the position in question and supporting positions were made.  Wage level issues can also be addressed in this letter.
• If the position is consultant or for a consulting firm, include a complete itinerary of the work the H-1B beneficiary will be performing for the duration of the H-1B visa period.  This must include client and customer contact information.

Let us review your petition to identify areas of weakness and advise accordingly before you file.  For a free review of your case visit www.ccifree.com and we will respond in four hours or less.

Sheila Danzig

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

According to Forbes, about two-thirds of annual H-1B cap-subject visas are awarded to beneficiaries in computer occupations.  As of June 2021, there were over 1 million computer positions actively vacant.  However, H-1B applicants working as computer programmers have been hit the hardest by specialty occupation issues in their petitions.

A few years back, a H-1B visa approval trend emerged wherein occupations that are listed in the US Department of Labor’s Occupational Outlook Handbook as normally but not always requiring a bachelor’s degree minimum were adjudicated to not meet the specialty occupation requirement.  H-1B eligibility requirements state that to qualify as a specialty occupation the job must normally require a bachelor’s degree minimum, but USCIS began adjudicating the exception as the norm.

There are three other ways to meet the specialty occupation requirement:

1. The minimum bachelor’s degree requirement is the industry norm for the position in question, or this position is uniquely complex.
2. The H-1B employer always requires a bachelor’s degree minimum for this position.
3. The nature of the job is uniquely complex as to require a bachelor’s degree at minimum.

If the position in question does not ALWAYS require a bachelor’s degree minimum as stated in the US Department of Labor’s Occupational Outlook Handbook, you will need to prove that it meets at least one of the three alternatives. 

This will require documentation of past hiring practices and the ad for the job along with ads for the same position for parallel companies that show an unbroken pattern of a minimum bachelor’s degree requirement.  You will also need to provide a detailed breakdown of the duties and responsibilities of the job along with an analysis of how complex skills and knowledge are applied.  Along with this evidence and documentation, provide an expert opinion letter written by an expert in the field of the H-1B job to lend credibility to your case.  This expert should have at least a decade of experience working in the field of the H-1B job, have held leadership roles, and have made hiring decisions regarding the position in question and supporting positions. 

At CCI TheDegreePeople.com we work with experts in every H-1B field that have the credentials and experience required by USCIS to accept their letters as evidence in your case.

For a free review of your case and consultation, visit www.ccifree.com.  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.