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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.

On March 30, 2020, USCIS announced that due to the COVID-19 crisis, RFE, NOID, and other notice respondents will have a 60-day grace period to file a response following the due date.  That means any response filed within 60 days of the deadline will be considered received by USCIS. 

This grace period has been officially extended through January of 2021 and applies to all RFEs and NOIDs issued between March 1, 2020 and January 1, 2021.  The extended grace period also applies to responses to continuations to request evidence, notices of intent to revoke, Form I-290B filing date requirements, notices of appeal or notice of motion, notices of intent to rescind, and notices of intent to terminate regional investment centers issued between March 1, 2020 and January 1, 2021.

At CCI TheDegreePeople.com, we track USCIS visa approval trends closely and over the past few years we have seen it take as many as three rounds of RFEs to get visa approval.  Since 2017 in particular, this has caused H-1B employees to delay start dates, causing a whole host of problems for the beneficiary and the employer.  For this reason, we do NOT advise making use of this 60-day grace period.  The sooner your response the better.

At CCI TheDegreePeople.com we offer affordable rush delivery services on expert opinion letters and academic credential evaluations to address employer-employee relationship, wage level, specialty occupation, and education issues with a 96% success rate.  To prevent a second or third round of RFEs, we advise anticipating any weaknesses in the case based on current USCIS approval trends and addressing these issues in the initial petition or first RFE response.

There are no guarantees with USCIS, processes are moving slow this year, and as always with visa approval, time is of the essence.  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.

The rate of RFE responses to H-1B initial petitions held stead from the second quarter of 2019 this year, rising from 35.3% to 35.8% this year.  However, while in 2019 only 58.8% of RFEs were successfully answered, this year 68.2% were approved in the second quarter of 2020.  We at CCI are proud to say that 96% of the RFEs handled by our experts were successfully overturned!

As we await third quarter data, it may be hard to predict approval trends in the fourth quarter because a new regulation is currently under review of the Office of Management and Budget that would codify H-1B restrictions.  However, what we can see is that fighting RFEs works, and H-1B applicants should continue to respond with strong cases for visa approval. 

The proposed regulation may force H-1B employers to restructure their hiring process from the very beginning to ensure compliance with restrictions.  First, those who hire H-1B employers to work at third party sites must show that the employer will be able to control the work of the H-1B employee, even offsite.  In addition, they must provide contracts that show the H-1B employee will have ensured work for the duration of the three-year visa.  Over the past few years, employers have already been forced to due this by new interpretation of unchanged USCIS H-1B eligibility requirements. 

The second change may be harder to address as it has to do with the dreaded specialty occupation issue.  In past years, USCIS has issued RFEs for jobs that do not require a bachelor’s degree or higher in ALL cases, making the exception the rule instead of adhering to the verbiage of the regulation, “normally.”  Answering these RFEs has required calling attention to this misinterpretation of the rule.  This new regulation would effectively change “normally” to “always,” and require that the degree specialization is an exact and singular match to the H-1B job.  To address this, employers must show documented past hiring practices, the ad for the job, and past hiring practices of ad jobs for the same position at similar companies that they ALWAYS require a minimum of a bachelor’s degree or higher in a specific specialization. 

At CCI TheDegreePeople.com, we work with difficult RFEs and USCIS approval trend curveballs every year.  With the help of international education experts, professional experts in all H-1B fields, and experienced credential evaluators, we come up with solutions that work to prevent and answer RFEs and Denials.  We can help you beat the odds.  Don’t file without an expert review of your case to address any weaknesses before USCIS adjudicates the petition or RFE or Denial response.

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

Since 2017, H-1B visa applicants have faced specialty occupation and employer-employee relationship issues from USCIS wrongly adjudicating petitions based on the visa’s own eligibility rules.  So far, RFE and Denial responses and court challenges have been successful in overturning these decisions.  Now, a new regulation has been sent for review to the Office of Management and Budget to change the rules to meet their currently illegal decisions.

The two facets of this new regulation could restrict H-1B visa access significantly by fundamentally changing the definition of “specialty occupation,” and restricting the interpretation of “employer-employee relationship” to justify the illegal decisions they have already been making. 

Specialty Occupation

Currently, a specialty occupation is defined as a job that normally requires a minimum of a US bachelor’s degree in a field related to the job to perform.  This new regulation would change normally to always, and require the degree to be in the exact field of the H-1B job.  This is problematic for STEM jobs, especially computer-related jobs as there are many applicable degree specializations and most jobs require a mixture of skills.  For example, many computer-related professions pull employees from two different majors: statistics and computer sciences.  Making H-1B status only available through ONE exclusive degree is not practical for STEM jobs, which is where the bulk of H-1B visas are used.

Employer-Employee Relationship

This part of the regulations restricts H-1B employees working as consultants at third party sites.  The basis of this is that the employer cannot control the employee’s work in a way that meets H-1B eligibility requirements when they are working at a different site.  To meet this new regulation, the employer must provide all contracts for the three-year duration of the H-1B visa to show that the employee has a full work itinerary.  Employers must also show how they will be able to control the work of the H-1B employee at these sites.  In the past, employers did not have to show three fully stocked years of non-speculative work or provide additional evidence as to how they can control the work of the employee off-site.  Over the past few years, to avoid an employer-employee relationship issue, petitions have had to include this complete itinerary.  Now, they will also have to address work control.

There are two good bits of news regarding this new regulation.  First, the implementation of this potential new regulation makes it particularly vulnerable to legal challenge.  The plan is to publish the regulation as an “interim final rule” that will immediately go into effect without public or legislative input.  We are going into this change with the momentum of years of successful RFE and Denial responses, and successful court decisions including the March 31, 2020 Taylor Made Software v. Kenneth T. Cuccinelli ruling, and the March 6, 2020 3Q Digital, Inc. v. USCIS ruling. 

The second is that we have anticipated it for years, and we know how to answer specialty occupation and employer-employee relationship issues.  Codifying what USCIS has already been doing means we will be facing the same issues but without vagueness or surprise.  Every year, we come up with creative solutions to bridge the gaps between USCIS approval trends and the demands of the industries that employ H-1B beneficiaries. 

If your case, or if your employee or client’s case will likely be affected by this new regulation, let us help you.  For a free review of the 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 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.

The H-1B approval rate for the second quarter of FY2020 came in at 87.1%, a nearly 4% rise from the same time last year.  However, the RFE rate remained high, at 35.8%, with a 68.2% rate of approval after response.  That means around one in every three H-1B petitions is likely to receive an RFE, and to respond successfully, the first step is to determine who is at fault so you can best determine how to strengthen the case effectively.

Sometimes it’s the beneficiary’s fault.

Did the beneficiary provide poor information or documentation?  Did they provide false information regarding their education or work history?  Did they have a mismatched degree, incomplete college, or a degree from an unaccredited institution?  Were their credentials not what they thought they were?  These are all situations in which the beneficiary – knowingly or innocently – caused the RFE to occur.  The trick here is to find where false information or inadequate qualifications occurred and if possible, find a workaround, which there typically is.  If the problem is education there are many pathways to the proper credential equivalency, with the right credential evaluation that takes course content and work experience into account.

Sometimes it’s the employer’s fault.

H-1B employers must show that they are financially viable, and able to pay the H-1B employee prevailing wages without compromising their budget.  They must show that the position meets specialty occupation requirements and in many cases have to back this up with documentation of past hiring practices.  There must also be a clear employer-employee relationship in which the employer can hire, fire, promote, and otherwise control the work the employee performs.  Recently, one of the responsibilities of the employer in the petition is to provide a complete itinerary of the work to be performed by the employee for the three-year duration of the visa.  If any of this information is missing or lacking in documentation, the employer must provide this for the RFE.

Sometimes it’s the lawyer’s fault.

This is uncommon, but sometimes a petition is filed incorrectly.  In most cases, it is not the lawyer’s fault.

Sometimes it’s the credential evaluator’s fault.

If education issues were anticipated, a credential evaluation was ordered, and an education RFE still arrived, it may be the credential evaluator’s fault.  To be effective, each evaluation must be written specifically for the case in question, taking into account the visa, the job, USCIS approval trends, and the education and work experience of the beneficiary. That means using college credits and work experience to fill in any gaps between the credentials the beneficiary has, and the credentials the beneficiary NEEDS for visa approval.  The education must be the academic equivalent of a US bachelor’s degree (or higher, if required) in the exact field of the H-1B job.  Any work experience to college credit conversions must be written by a professor with the authority to grant college credit for work experience.

Sometimes it’s the expert’s fault.

If specialty occupation, employer-employee relationship, or wage level issues were anticipated, an expert opinion letter was ordered, and an RFE regarding the issue still arrived, perhaps it’s the expert’s fault.  The RIGHT expert whose opinion will hold weight with USCIS has preferably at least a decade of work experience directly in the field of the H-1B job.  Instructors do not meet this requirement.  The expert should have experience making hiring decisions within the industry, and have a depth of understanding of a wide range of positions in the field.  On the other hand, even the right expert cannot write an effective expert opinion letter if they are not provided enough information.  In that case, it is once again, the beneficiary’s or the employer’s fault.

Sometimes it’s USCIS’ fault.

This is often the case.  In three different judicial decision this past year, USCIS was found guilty of illegally denying H-1B petitions with adjudication decisions not based in law.  The specific situation is that specialty occupation, by legal definition “normally” require a bachelor’s degree or higher as a minimum qualification.  USCIS was rejecting H-1B petitions for jobs that “normally” require this because, according to their reasoning, employers will sometimes hire employees without this minimum academic qualification, in consequence making the exception the norm with no legal footing.  Specialty occupation RFEs tend to be USCIS’ fault.  Adjudication errors – or blatant disregard for the laws governing the H-1B program – are common causes of all kinds of RFEs.  Unfortunately, it is still on the applicant to successfully answer the RFE.  Identify which areas of eligibility need to be fortified, and understand how to successfully address USCIS approval trends, EVEN if they are not technically right.  At CCI TheDegreePeople.com, we always keep an eye on USCIS approval trends and every year we develop creative solutions to even the most frustrating of RFEs.

If you, your employee, or your client receive an H-1B RFE, let us review your case for free.  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.

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.