Sheila Danzig

Electronic registration for the H-1B lottery closes at noon TOMORROW March 25^th Eastern Time.  Those selected will be notified starting March 31^st after which they will have 90 days to file completed H-1B petitions.

Don’t use up those 90 days.  Over the past few years, we have seen up to three rounds of RFEs before visa approval.  This has delayed employee start dates and in turn delayed company workflow.  Get ready to file now and get ready to anticipate any bumps in the road to approval.

Specialty occupation RFEs have plagued applicants working borderline occupations that normally require a US bachelor’s degree or higher for entry into the position with some exceptions.  USCIS began adjudicating these cases making the exception the norm, which USCIS under the Trump administration attempted to codify.  With the change of presidential administration, it is unclear whether USCIS approval trends will change with it.  For this reason, we advise all H-1B petitioners filing for borderline occupations – particularly computer programmers – to include additional documentation to show that the job meets specialty occupation requirements.

1. Include proof of past employer hiring practices showing that a bachelor’s degree has always been a minimum requirement for the job.
2. Include a detailed breakdown of the duties and responsibilities of the job to show specialized skills and knowledge learned through an advanced degree program are required.
3. Include an expert opinion letter written by a professional with at least a decade of experience working in the FIELD of the H-1B job who has made hiring decisions regarding the H-1B position and supporting positions to lend credibility to your case.

You don’t have to wait until next week to get to work on your petition.  It is important to understand the potential vulnerabilities of your case in order to build a bullet-proof petition the FIRST time.  Get a jump on the season and let us review your case FOR FREE.  Visit www.ccifree.com for a free consultation.  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.

With new rules going into effect that may or may not last until the H-1B cap-subject filing season, it is more important than ever for H-1B applicants to take precautionary measures to prevent RFEs.

Over the past few years, we have seen up to three rounds of RFEs before visa approval.  This has caused H-1B employees to miss their work start dates and delay the sponsor’s workflow.  To prevent this, it is essential to make sure it is absolutely clear to USCIS that the beneficiary, the job, the education, and the terms of employment are in strict alignment with H-1B eligibility requirements.

Include an expert opinion letter.

An expert opinion letter written by a professional with extensive experience working in the field of the H-1B job and making hiring decisions can fortify wage level and specialty occupation aspects of the case.  It is essential to explain why the wage level is set appropriately, and why the H-1B job meets specialty occupation requirements – meaning a minimum of a US bachelor’s degree is required for entry into the position.

Include a credential evaluation.

If the beneficiary’s degree was earned outside of the United States – especially if it is a three-year bachelor’s degree – you will need to include a credential evaluation to translate its academic value into US educational standards.  If the degree is in a major that is not an EXACT match for the H-1B job, a credential evaluation that shows the beneficiary has the educational experience equivalent of the needed degree in the exact field of the H-1B job is needed.  If the beneficiary has no college, incomplete college, or a degree from an unaccredited institution, a credential evaluation is needed to convert years of progressive work experience into years of college credit in the major of the H-1B job. 

Include a complete itinerary of the work to be performed for the duration of the visa.

H-1B employees who will be working at third-party worksites or working for a consulting firm will need to show that there will be work throughout the visa duration, and that the employer will be able to control this work.  Include a schedule of the work to be performed, along with client names and contact information.  Include a copy of the employee contract along with an explanation of how the employer will control the work of the H-1B employee even when working offsite.

When USCIS finds one problem with a case, they tend to find more which snowballs into difficult RFEs that are virtually impossible to answer by their own guidelines.  At CCI TheDegreePeople.com we work with difficult RFEs every year.  We know what triggers them, and we know how to prevent them.  Let us look at your case before you file to fill in any gaps between the petition and visa approval.

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.

When the number of cap-subject H-1B petitions exceeds the allotted 65,000 annual H-1B visas and additional 20,000 visas for beneficiaries with master’s degrees or higher, USCIS has a randomized lottery to select which petitions will be processed.  Like last year, electronic registration will be the first step, and then those selected will be asked to submit a completed petition.  Also like this past year, the 20,000 advanced degree visa registrations will be selected first in a randomized lottery and those not chosen will get a second chance in the regular pool.  This gives beneficiaries with advanced credentials a higher chance of being selected for an H-1B visa.  Now, the Department of Homeland Security proposes to take it a step further, doing away with the randomized lottery for the upcoming H-1B filing season.

On November 2, 2020, DHS proposed the rule, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.”   The comment period extends to December 2, 2020.

The background of this proposed rule stems from the 2017 Executive Order 13788 directing DHS and other agencies to, “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” 

To follow this directive, this new rule generally selects “registrations based on the highest Occupational Employment Statistic (OES) prevailing wage level so that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.”

The reasoning DHS gives for doing away with the randomized lottery by generally selecting petitions for beneficiaries with the highest wage levels is as follows:

“A random lottery system is reasonable, but inconsiderate of Congress’s statutory purposes for the H-1B program and its administration.  Instead, a registration based on wage level within each cap would increase the average median wage levels of H-1B beneficiaries who would be selected for further processing under the H-1B allocations.  Moreover, it would maximize H-1B cap allocations so that they would more likely go to the best and brightest workers.”

However, this proposed rule ignores a central pillar of the H-1B program, which is to attract the brightest students from abroad to come to the United States for college by offering them an avenue for specialty occupation employment following graduation.  These jobs tend to be low-wage due to lack of work experience.  This new rule may also discriminate against small companies and petitioners based in geographical locations with generally lower wage levels.

If this proposed rule goes into effect, this may significantly change the way H-1B employers make hiring decisions regarding H-1B positions, set wage levels, and determine which jobs require advanced degrees.  We expect RFEs regarding wage level and specialty occupation issues to come back in full swing, and we anticipate education issues especially regarding advanced degree equivalencies. 

We are monitoring the situation closely and are dedicated to keeping our clients and community informed and developing creative solutions.  This new rule will be vulnerable to challenge in the court system and could very well be reversed or otherwise changed when the Biden Administration takes office.  In the meantime, let us review your case for viability and to see where adjustments can be made to enhance your petition’s odds of approval.

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 University of Pennsylvania’s Wharton School study conducted in July of 2020 confirmed that immigration is essential for economic growth in the United States.  According to this study, immigrants are 80% more likely to be entrepreneurial.  Furthermore, companies started by immigrants create 42% MORE jobs than businesses started by Americans.  This was found to be the case for businesses of all sizes.

This discovery came just months before the Department of Homeland Security and USCIS submitted the Interim Final Rule to restrict H-1B visa eligibility.  Restrictions threaten to hurt medical fields during the Covid-19 crisis, as well as STEM companies.  As the Wharton School study found, restricting immigration – especially immigration for highly skilled workers – restricts economic development in general.  Fortunately, we have been preparing for these new H-1B restrictions since USCIS began enforcing them without legal precedent in 2017.  This new Final Interim Rule is the codification of what has been happening, and what we have been successfully responding to.

We advise all H-1B applicants to include an expert opinion letter strengthening the specialty occupation and wage level aspects of the case.  Consulting firms and other companies where employees work at third-party worksites must include a complete itinerary of the work to be performed throughout the three-year duration of the H-1B visa.  If the beneficiary’s education is ANYTHING BUT a US degree in the EXACT field of the H-1B job, a detailed credential evaluation that takes work experience, college credit, the job, the visa, and USCIS approval trends into consideration to close any gaps between the credentials the beneficiary has and the credentials the beneficiary needs for visa approval.

At CCI TheDegreePeople.com, we work with experts in all H-1B fields that have the professional qualifications USCIS accepts for expert credibility.  All of our credential evaluations are tailored to fit each client’s unique circumstance.  We work with difficult RFEs every year and know how to prevent them, and how to address them with a 96% success rate. 

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

USCIS and the Department of Homeland Security have submitted an Interim Final Rule with request for comments, to go into effect December 7, 2020 which will restrict H-1B visa eligibility.  This rule will codify the USCIS approval trends we have been seeing since 2017.

This rule changes the definitions of specialty occupation and United States employer, and adds the two new definitions of worksite and third party worksite.  These definitions impact H-1B eligibility requirements regarding the job qualifying as a specialty occupation, and the situation qualifying as an employer-employee relationship.  You can view the rule and read the changes, definitions and requirements in detail here.

The major changes to specialty occupation will require petitioners to show that the position requires a US bachelor’s degree or higher in a specialty specific to the H-1B job as a minimum requirement for entry into the job.  The rule states that for a job to qualify as a specialty occupation, it must meet one of the following requirements:

“(1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into the particular occupation in which the beneficiary will be employed; (2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent is the minimum requirement for entry into parallel positions at similar organizations in the employer’s United States industry; (3) The employer has an established practice of requiring a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, for the position.  The petitioner must also establish that the proffered position requires such a directly related specialty degree, or its equivalent, to perform its duties; or (4) The specific duties of the proffered position are so specialized, or unique that they can only be performed by an individual with a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.”

Our suggestion is to go for at least two!  Cover your bases and you will reduce your chances of running into trouble with adjudication.  We recommend a detailed breakdown of the duties and responsibilities of the position alongside the specific skills and knowledge gained through completion of the required degree that will be theoretically and practically applied.  The best way to do this is through an expert opinion letter written by an expert in the field of the H-1B job with extensive experience working in the field, in positions of leadership wherein they made hiring decisions.  Your job is to provide the expert with as much information as possible regarding the position and the employer, and their job is to validate that the job does in fact require skills and knowledge acquired through completion of the required degree.

At CCI TheDegreePeople.com we work with experts in all H-1B fields that have at least a decade of experience working in the field and making hiring decisions regarding H-1B eligible positions.  With their expert opinion letters, we have been able to prevent specialty occupation issues by including the expert letter in the initial petition.  We have also been able to answer specialty occupation RFEs utilizing these letters with a 96% success rate.

Let us help you navigate specialty occupation issues with regards to USICS’ new rule.  It is likely to be challenged in court, but if the objective is to get your H-1B employee to work by the start date, this is likely not an option for your organization, firm, or company.  Visit www.ccifree.com for a free review of your case.  We will respond

The Department of Homeland Security and USCIS have submitted an Interim Final Rule that will go into effect on December 7, 2020.  This rule restricts H-1B eligibility by revising two key definitions, one of which has been blocking the ability of USCIS to illegally deny H-1B visas: “specialty occupation.”

This Final Interim Rule also revises the definition of “United States Employer,” and add definitions for “worksite” and “third-party worksite.”  You can read the entirety of this rule here. 

USCIS has been issuing an unprecedented number of RFEs for specialty occupation issues, most of which have been fairly easy to overturn because in adjudication USCIS was breaking with the definition of the term.  The current definition of specialty occupation that has been giving USCIS so much trouble denying visas is:

“An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health education, business specialties, accounting, law, theology and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as minimum for entry into the occupation in the United States.”

The NEW definition of “specialty occupation” that goes into effect December 7, 2020 is as follows:

“An occupation that requires: (1) The theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, or the arts; and (2) The attainment of a U.S. bachelor’s degree or higher in a directly related specific specialty, or its equivalent as a minimum for entry into the occupation in the United States.  The required specialized studies must be directly related to the position.  A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization is sufficient to qualify for the position.  While a position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.”

The key difference here is that the second definition will raise the burden of proof on the H-1B applicant to prove direct application of a body of highly specialized knowledge and skill earned through a specific degree.  As explained in the rule: “Under this new rule, the petitioner will have the burden of demonstration that there is a direct relationship between the required degree in a specific specialty (in other words, the degree fields(s) that would qualify someone for the position) and the duties of the position.”

The bad news is, this rule changes the regulation to legally justify the massive increase in H-1B RFEs and Denials.  The good news is, at CCI TheDegreePeople.com, we have already been advising our clients to do just as the rule says to show the direct application of knowledge and skills attained through a specific degree to the duties and responsibilities of the H-1B job.  We have seen a 96% success rate overturning specialty occupation RFEs with an expert opinion letter clearly showing how the attainment of a specific specialized degree directly applies to the H-1B job.  We have also been helping H-1B applicants fill in the gaps between the degree they have, and the specific degree specialization they need to exactly match the H-1B job title by writing credential evaluations that take work experience in the field and specific classes in the academic area of the specialization into account.

Let us help you build an airtight petition.  Before you file, visit www.ccifree.com for a free review of your case.  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.

Guest Blog by Eric Lyons

Being the most sought-after visa to enter the United States of America, an H1B visa is difficult to get. Applicants for H1B jobs in USA (beneficiaries of H1B visa petitions) can either be living in the USA or outside the USA at the time of filing of the petition.

Even though H1B visa petitioners and prospective visa holders have a slight knowledge of RFE, most of the time they cannot decode the reason why they got one. In this blog post, we have tried to cover the essential information related to H1B RFE, including its meaning, probable reasons, and response practices. Continue reading to get answers to all your questions.

What is RFE?

RFE stands for ‘Request for Evidence’, a request made by the U.S. Citizenship and Immigration Services (USCIS), against the H1B visa petitions. The objective behind issuing an RFE is to seek additional evidence in the form of explanatory answers and documents before adjudicating an H1B visa petition.

How do you get notified?

Once the H1B petition filed by your current employer, prospective employer, or staffing consultant in the USA gets picked up in the lottery, you will get a USCIS case/receipt number. You need to ask your sponsor to share this number with you. With the help of the USCIS case/receipt number, you can check the status of your petition online.

Why do you get an H1B RFE?

Though an RFE for the H1B petition can be received because of any reason, the following are some typical reasons that are observed in the majority of the cases.

• A discrepancy in Information between Application and VIBE

The VIBE, which stands for ‘Validation Instrument for Business Enterprises’ is a web-based tool used by the USCIS for verifying the details mentioned about the H1B employer in the application. If the details don’t match, you are likely to receive an H1B RFE.

• Relationship between an Employer and an Employee

The relationship between a current/prospective employer and a current/prospective employee plays a strong role in the approval of H1B visa. For the application to be considered legitimate, it has to be proved that an employer-employee relationship exists between the employing organization itself. Supervision is done for this.

If the job has to be performed offsite, you need to explain the reason and follow the necessary rules.

• Inconsistency between the Prescribed and Offered Wage Rate

The government has prescribed a wage for employees at different levels, giving priority to citizens.

The employees at level 1 are entry level employees, whereas the employees at level 4 are fully competent. H1B jobs in USA are provided to job seekers in specialty occupations. So, they should be given the wages or remuneration as. 

If the wages offered to you as mentioned in the H1B visa petition filed on your behalf does not match the level 4 wages, you will receive a request for evidence. Explaining the reason behind the inconsistency between the wages might be difficult for you and your employer.

What should you do on receiving an H1B RFE? You should coordinate with your employer to respond to the H1B RFE. If an H1B RFE is issued to you despite taking all the precautions, you must submit the response carefully as you will not get a second chance.

Eric Lyons is a PR strategist and writer at OPTnation, with extensive professional management experience in both public and private sectors.