Sheila Danzig

To meet H-1B eligibility requirements, a job situation must entail an employer-employee relationship.  This essentially means that the employer has the right and ability to control the work of the employee.  Specifically, the employer may, “hire, pay, supervise, or otherwise control the work of any such employee.”

Although this seems like a straightforward requirement, petitioners have been running into trouble in the following situations:

• H-1B employee works as a consultant or for a consultancy
• H-1B employee spends time working offsite at third-party worksites
• Employer workflow is on a per-project basis
• Employer workflow is irregular due to client/customer needs.

These situations have become even more common with the increased prevalence of remote work.  The nature of the employer-employee relationship has not fundamentally changed.  However, petitioners are having to go the extra mile to prove the employer’s ability to control the employee’s work offsite, and provide the employee consistent work for the duration of the H-1B visa period.  Those who fail to do this receive RFEs instead of approval.

The best way to answer an RFE is to prevent it.  That means including additional documentation with the initial petition.  This should include a copy of the employee contract showing the mechanisms of the employer’s ability to control the employee’s work, onsite and offsite.  Provide additional information regarding how the employer will be able to continue to control the employee’s work when offsite, including reporting requirements, hours tracking, work quality tracking, and remote supervision solutions utilized.  To show a constant workflow, include an itinerary of the work the H-1B employee will perform for the duration of the H-1B visa period, including client names and contact information.

Education issues, specialty occupation issues, and wage level issues continue to be RFE magnets that trip up eligible H-1B applicants.  When USCIS finds one problem with a petition, they look for more.  That’s how petitioners end up with complex RFEs.  At CCI TheDegreePeople.com we work with the entire range of H-1B cases every year.  We know which situations trigger issues and we know what additional evidence and documentation to provide to strengthen your case and get that visa approved outright.  Let us review your case 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.

The Biden Administration’s Proposed Rule, U.S. Citizenship and Immigration Services Fee Schedule Changes to Certain Other Immigration Benefit Request Requirements, CIS No. 2687-21; DHS Docket No. USCIS 2021-0010 is scheduled to be read on January 11, 2023 for a listening session with the final rule and changes taking effect after a 60-day public comment period.  This sprawling, over 400-page proposal seeks to significantly increase fees for permanent and temporary work visas to subsidize the USCIS asylum program and fund the general overhaul of USCIS’ visa processing infrastructure. 

The good news is that fee hikes intend to expedite visa processing, eliminate the backlog, and hire additional adjudicators.  The other good news is that fee hikes will be used to reduce or eliminate asylum application fees for low-income seekers, including victims of human trafficking and other serious crimes.  The bad news is the burden for these two components is placed entirely on employers of foreign nationals.

USCIS relies on application fees rather than Congressional funding, and claims that employers are best suited to pay higher fees because they can afford it.  At the same time, USCIS notes that fees have not been adjusted since 2016.  However, the cost of applying for these visas will increase significantly.

EB and H-1B employers will be required to pay an addition $600 fee specifically for the asylum program on top of fee increases.  For H-1B applicants, the electronic registration fee will jump from just $10 to $215.  The full H-1B petition application fee will increase from $460 to $780, and THEN the additional $600 asylum fee will bring the total price tag to $1380.  This is an enormous burden to put on employers.

The EB-5 visa classification will make the largest jump from $3675 to $11,160 under the new rule, and the cost of applying to change temporary visa status to Green Card status will jump from $1225 to $1540.

If the rule goes into effect, it may impact the FY2024 H-1B visa filing period, and will certainly impact non-cap subject H-1B applicants in the coming year.  It is unclear whether it is legal for employers to be forced to subsidize the asylum program.  While USCIS traditionally relies on application fees, this may be a case in which Congressional funding is required.  We will follow the trajectory of this proposed rule over the coming months.

Sheila Danzig

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

When Meta laid off 13% of its work force this month, many of those 11,000 employees had their H-1B visas rendered invalid.  They now have two months to either find another job under H-1B status, apply for a different visa, or leave the country.  Some were traveling abroad at the time and cannot legally return to their homes in the United States.  Many have children enrolled in the U.S. education system and spouses who also work in the United States. 

The U.S. government has listed Meta as an H-1B dependent company, definitionally one with over 15% of its workforce being H-1B visa holders.  Nearly half of all Meta employees are Asian as of this year.  While Meta has not disclosed the specific number of H-1B visa holders impacted by layoff, hundreds have flocked to a WhatsApp group to help each other navigate this dilemma.  As part of their severance package, Meta offered an immigration support hotline, which has been slow to respond at best and non-responsive at worst.  

H-1B visa holders fired from Meta have a 60-day grace period to either find another H-1B eligible job, acquire a different visa, or return to their country of origin. 

Some laid off Meta employees face unique dangers in returning to their countries of origin after having worked for the social media giant.  For example, Facebook is banned in Russia and considered an extremist company.  Laid off Meta employees of Russian origin are under extreme pressure to find a way to remain in the United States or face untold consequences of their employment.  Many laid off Meta employees now face the stark possibility that they may have to return to dangerous countries.

Based on H-1B lottery numbers, there is still a massive demand for H-1B workers in STEM fields.  500,000 registrations were filed in this year’s H-1B lottery, only 85,000 of which were selected.  Since H-1B transfers are cap-exempt, this could be an auspicious opportunity for both H-1B visa holders and employers.  On the other hand, Meta is not the only major tech company that has implemented layoffs and hiring freezes for a variety of reasons.  LinkedIn and other professional networking platforms are now flooded with Meta employees scrambling to find work.  We will continue to follow the situation as it progresses.

Sheila Danzig

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

The EB-2 and EB-3, two employment-based visas, are the most sought-after visas.  This year, there were extra employment-based visas rolled over from unused family-based visas from the COVID-19 Pandemic due to worldwide embassy closures.

EB-2 visas carry an advanced degree requirement, meaning the beneficiary must hold a US master’s degree or higher or its equivalent.  However, for beneficiaries with only a bachelor’s degree, there is still an option to meet eligibility requirements.  Since EB-2 visas carry significantly shorter processing times, if the option to pursue this visa is viable, beneficiaries and their sponsors should opt for it.  Here’s how:

USCIS considers five years of progressive work experience FOLLOWING the attainment of a bachelor’s degree to be the equivalent of a master’s degree.  That means if the beneficiary earned a US bachelor’s degree or its equivalent, and THEN endeavored five years of work experience in which they took on more responsibility and the nature of their work became increasingly complex and specialized, they would meet EB-2 education qualifications. 

If this is your situation, or your employee or client’s situation, go for EB-2!  However, there are still some pesky details along the way to be aware of:

• The five years of progressive work experience following attainment of a bachelor’s degree must have been completed BEFORE the sponsor files the LCA, and in most cases none of the post-degree work experience can have been performed for the sponsoring employer.
• If the bachelor’s degree was earned outside of the United States, a credential evaluation will be required to show the US academic value of the degree.  Since the bachelor’s degree must be a single source to meet EB-2 standards, progressive work experience CANNOT be combined with a three-year bachelor’s degree to meet this equivalency.  If this is the case, twelve years of progressive work experience can be converted into a full bachelor’s degree with an evaluation written by a professor authorized to grant college credit for work experience.  This equivalency must be FOLLOWED BY an additional five years of progressive work experience. 
• The offered position must require a master’s degree or higher to meet EB-2 qualifications.
• The listing for the position must clearly state that a master’s degree or higher OR a bachelor’s degree followed by five years of progressive work experience in the field is the minimum educational qualification for the job. 

For EB-2, the advanced degree option is one of three ways to qualify.  The second way to qualify is through Exceptional Ability by meeting three of seven criteria as specified by USCIS, and the third is through a National Interest Waiver. 

If you, or if your employee or client qualifies for an EB-2 visa, let us review your case before you file to make sure the education is in order.  At CCI TheDegreePeople.com we work with professors authorized to grant college credit for work experience, and all of our evaluations are written uniquely to fit the education, the employment, the visa requirements, and the work experience. 

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.

In total, around 484,000 H-1B electronic registrations were submitted and 127,600 were selected in the lottery in March of 2022.  Those selected were invited to submit complete H-1B petitions.  USCIS selects a buffer number of extra registrations to account for those who opt to not submit petitions and those whose applications are denied.  Last year, there were three rounds of H-1B lotteries to solicit enough completed petitions to reach the annual H-1B cap.  This lead many to anticipate a second lottery this year.

On August 23, 2022, USCIS officially announced that there will be no second lottery for FY2023 H-1B cap-subject visas.  All 65,000 regular and 20,000 advanced degree visas have been awarded, and applicants not selected will have to wait until next year.

However, non-cap subject H-1B petitions are still being received and approved.  If you, or if your employee or client is in one of these situations that apply to both cap-subject and cap-exempt initial petitions, you don’t have to worry about a lottery:

• H-1B transfers wherein the beneficiary changes employers
• H-1B extensions wherein the beneficiary extends their visa beyond the three-year period or based on a Green Card situation
• H-1B amendments regarding employment terms or duties changes
• H-1B concurrent employment.

Beneficiaries with advanced degrees working in specialty occupations for the following employer entities are also cap-exempt:

• Institutions of higher education
• Nonprofit research organizations
• Government research organizations
• Nonprofit entities affiliated with or related to an institution of higher education.

If you, or if your employee or client is not subject the H-1B cap, you will still need to prove that all H-1B eligibility requirements are met to ensure you don’t run into any approval issues that impact the employee start date, or the beneficiary’s ability to remain in and work in the United States. 

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.

One of the main H-1B eligibility requirements is that beneficiaries hold a bachelor’s degree or higher or its equivalent in the field of the H-1B job.  However, highly skilled individuals often have non-traditional educational pathways and many qualified hires do not have any college credit at all.

Does this mean no chance at a visa?  Of course not!  But it will take extra steps and a good deal of USCIS handholding to make your case.

USCIS accepts that three years of progressive work experience in the field of the H-1B job is equivalent to one year of college credit in the associated major.  Progressive work experience means that education took place on the job as evidenced by the nature of the work becoming increasingly complex and specialized, with the employee taking on progressively more responsibility.  A professor authorized to grant college credit for work experience can write this work experience conversion.  To account for all four years of a bachelor’s degree, the beneficiary must have twelve years of progressive work experience to meet this academic equivalency.

If this is your situation, or your employee or client’s situation, you will need to include a credential evaluation that includes this work experience conversion with your initial petition.  This will clearly show USCIS that the beneficiary has the educational equivalent of a bachelor’s degree in the field of the H-1B job in terms of US academic value.

At CCI TheDegreePeople.com, each credential evaluation is written uniquely to fit the job, the education, the work experience, and the visa of each client.  We work with professors authorized to grant college credit for progressive work experience to write the credential evaluation you need for visa approval.

Let us review your case for free.  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.

Whether you’re filing the initial H-1B petition or facing an education RFE, there are many cases in which the beneficiary will need to include a credential evaluation.  Here are some reasons why:

• No college or incomplete college
• Degree earned outside of the United States
• Degree is a three-year degree
• Generalized degree
• Degree in a major that does not match the H-1B job.

If the beneficiary’s education is ANYTHING BUT a US bachelor’s degree or higher in the exact field of the H-1B job, you will need to include a credential evaluation that clearly shows USCIS that their education and work experience comprises the equivalency of the required degree in terms of US academic value.

However, finding the right agency to write this credential evaluation can be murky business because the industry is not regulated.  Often, an agency will write a cookie-cutter evaluation that does not address the unique situation of the H-1B beneficiary.  An effective evaluation is written uniquely to the situation, taking the job, the education, past work experience, the visa, and USCIS approval trends all into account.

How do you know when you’ve found the right credential evaluation agency?  Look for these GREEN flags:

• They are members of a professional organization that holds its members to standards of excellence.
• They are great communicators, responding promptly to text, email, phone, and social media.
• They offer a free consultation and reasonable prices even for rush delivery.
• They ask about the job, the education, and the visa.
• They provide references when asked.

At CCI The DegreePeople.com, we check all the boxes.  We have an over 90% rate for successfully overturning education RFEs and all of our credential evaluations are written uniquely by international education experts.

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.

Specialty occupation issues have triggered barriers to H-1B visa approval for about half of the past decade and continue to be a statutory target for restrictions on the H-1B program.  Beneficiaries, petitioners, and immigration attorneys have put countless hours of work into fighting back against these restrictions and holding USCIS accountable for illegally denying H-1B visas, and this has had a significant impact on RFE and Denial rates. 

However, H-1B petitions are still ground zero for holding these restrictions at bay to maintain a robust H-1B visa program to keep the United States economically competitive and continue to attract bright minds from around the world to US universities and the work force.  Since Specialty Occupation issues are a pinch point, it is important to understand the nuanced requirements and provide documentation that multiple options are accounted for in the initial petition.

USCIS states, “The occupation requires: Theoretical and practical application of a body of highly specialized knowledge; and Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

One of four criteria must be met to prove the H-1B job is a specialty occupation:

1. The position normally requires a bachelor’s degree or higher as the minimum educational requirement for entry into the position.  Falling back on this requirement has proven dicey for applicants because USCIS has been adjudicating “normally” as “always,” making the exception the norm.  If the job’s entry in the US Department of Labor’s Occupational Outlook Handbook states that the position does not ALWAYS require a bachelor’s degree or higher minimum, USCIS is likely to issue an RFE instead of approving the visa.  This is why at CCI TheDegreePeople.com we recommend covering your bases and providing documentation that one of the following criteria are also met.
2. A bachelor’s degree or higher minimum educational requirement for entry into the position is the industry standard as evidence by hiring practices for parallel positions, or this job is uniquely complex so as to require an advanced degree. 
3. A bachelor’s degree or higher minimum educational requirement for this position is a consistent hiring practice for this employer as evidenced by proof of past hiring.
4. Specific duties unique to this job are specialized and complex as to require an advanced degree minimum. 

Provide additional evidence and documentation to prove that at least two of these requirements are met and an expert opinion letter to lend weight to the case.  This letter must be written based on documentation the petitioner provides of industry standard and past employer hiring practices, and a detailed breakdown of the duties and responsibilities of the job highlighting how specialized skills and knowledge acquired through advanced degree attainment apply.  This expert must have extensive experience working directly in the field of the H-1B job, and have held leadership roles wherein they made hiring decisions regarding this position and supporting positions. 

At CCI TheDegreePeople.com we work with experts in every H-1B field.  Let us review your case for free before you file to prevent Specialty Occupation issues.  Visit www.ccifree.com and we will respond in 4 hours or less.

It’s time for those selected in the H-1B lottery to file complete petitions.  An airtight petition will prevent any RFEs or other adjudication hang-ups standing between your employee and their start date. 

Before you file, go through this checklist to make sure any potential weaknesses in your case are addressed:

• Double-check all documents to make sure answers, timelines, addresses and other contact information, and spellings are consistent.
• Make sure all documents, forms, and supporting evidence are accounted for and filed in the proper order.
• If the wage level is set at Level One Wages or if the entry for the H-1B job in the US Department of Labor’s Occupational Outlook Handbook lists that the job does not ALWAYS require a bachelor’s degree minimum, include an expert opinion letter addressing wage level and specialty occupation issues.
• Include a detailed breakdown of the duties and responsibilities of the job and how attainment of an advanced degree apply.
• Provide evidence of past hiring practices and hiring practices for parallel positions within the industry showing specialty occupation.
• If the wage level is set at Level One Wages, include a breakdown of the factors that went into setting the wage level appropriately and proof of prevailing wage.
• If the beneficiary’s degree is ANYTHING EXCEPT a US bachelor’s degree or higher in the exact field of the H-1B job, include a credential evaluation showing that the beneficiary has the academic equivalent of the required degree in terms of US academic value.
• If the H-1B position is a consultant or works on a per-project basis, include a complete itinerary of the work to be performed for the 3-year H-1B visa period.
• If the H-1B employee will spend time at third-party worksites, explain how the employer will be able to control the work of the employee offsite.
• Have a professional review of your case to check for any omissions or weaknesses and advise accordingly.

At CCI TheDegreePeople.com we work with difficult cases every year.  We know what triggers adjudication issues, and we know what petitioners need to show to prevent them.  Let us help you hold USCIS’ hand as they approve your petition.  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.

Complex H-1B RFEs are not new, and they are not going away.  When USCIS finds one issue with a petition it triggers a closer look to find more – even if there aren’t any there!  That is how too many petitioners end up with multi-issue RFEs.  The Nightmare RFE dredges up so many issues that it is virtually impossible to answer in time by its own guidelines.

How do we answer the Nightmare RFE with an over 90% success rate?  We don’t follow the guidelines.

We advise our clients to read through the RFE, then put it down and go back to the original H-1B requirements and USCIS approval trends.  Then, look at the case in question and determine what evidence and documentation can better strengthen each requirement area.

When it comes to the Nightmare, this is what the solution looks like:

1. Education Issues.  Include a credential evaluation written uniquely to address the visa, the job, the beneficiary’s education, and USCIS approval trends.  This means showing that the beneficiary has the clear educational equivalency of a US bachelor’s degree or higher in the exact field of the H-1B job.  This often includes a progressive work experience conversion wherein a professor with the authority to grant college credit for work experience converts three years of the beneficiary’s progressive work experience in the field of the H-1B job into one year of college credit towards that major.
2. Specialty Occupation Issues.  Provide the ad for the job and ads for the same job at similar companies that show a bachelor’s degree is a minimum requirement to be hired to the position.  Include evidence of past hiring practices within the company showing the required bachelor’s degree minimum for the H-1B position in question. Include a detailed breakdown of the duties and responsibilities of the job highlighting specific skills and knowledge applied learned specifically through completion of a degree program in the field of the H-1B job.  Finally, include an expert opinion letter written by a professional in the field of the H-1B job with at least 10 years of field experience based on the additional information provided.  This expert should have experience in leadership and authority positions within the field in which they made hiring decisions regarding the position in question and supporting positions.
3. Employer-Employee Relationship Issues.  Show how the employer will be able to control the work of the employee even at third-party worksites.  In addition, provide a complete itinerary of the work the H-1B employee will perform for the duration of the H-1B visa. 
4. Wage Level Issues.  Provide a detailed breakdown of the factors that went into determining the appropriate wage level.  This issue can also be addressed in the Specialty Occupation expert opinion letter.

The best way to prevent a complex RFE is to anticipate and prevent it.  Taking the extra steps to clearly show USCIS that the beneficiary, the employer, and the position meet H-1B eligibility requirements is always worth it even if it feels like an unnecessary amount of hand holding.  At CCI TheDegreePeople.com we work with Nightmare RFE cases every year.  We know how to answer them, and we know how to prevent them.

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.