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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.

When USCIS finds one red flag in a petition, that triggers a scrutiny of the entire case which can lead to RFEs that are very difficult to answer.  The Triple Threat RFE can be triggered by wage level specialty occupation, or education issues, and escalates to a monster RFE that calls all three into question.

The trick to answering these difficult RFEs is to go back to the basics and build your case from there.  This can be done in two steps. 

First, include an expert opinion letter written by a professional in the industry of the H-1B job.  This expert must have extensive experience working in the field of the job and making hiring decisions to the position in question and similar positions.  This letter can cover wage level and specialty occupation issues.  Provide the expert as much information as possible about the specific duties and responsibilities of the job, and how the skills and knowledge required are acquired through completion of a bachelor’s degree in the field of the H-1B job.  Also provide the expert with a breakdown of the factors that went into setting the wage level, and documentation of past hiring practices and starting wages that fortify specialty occupation and wage level issues.  The more information you can provide the expert, the better equipped they will be to write a compelling letter that covers both specialty occupation and wage level issues.

Second, include a credential evaluation that takes the job, the beneficiary’s education and work experience, visa requirements, and USCIS approval trends into account.  This evaluation must be uniquely written to fill in any gaps between the education the beneficiary has, and a US bachelor’s degree (or higher, if required by the job) in the exact field of the H-1B job.

At CCI TheDegreePeople.com, we work with experts in all H-1B fields that have the credentials required for USCIS to accept their opinion.  Our credential evaluators research every evaluation uniquely and tailor it to meet each client’s situation.  With an expert opinion letter and a detailed credential evaluation, and supporting documentation, we have seen a 96% success rate in overturning these difficult RFEs.

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.

With the new H-1B Interim Final Rule, it is more important this year than ever to make sure the H-1B employee’s degree specialization is an EXACT MATCH for the proffered position.

The Interim Final Rule that goes into effect December 2020 narrows the definition of specialty occupation and codifies the way that USCIS has been adjudicating H-1B visa petitions for years now.  The degree must be an exact match for the H-1B job. 

Employers often hire qualified employees with degrees in related majors.  Employers often hire qualified employees with incomplete college, no college, or generalized degrees who instead have years of work experience in the field of the H-1B job.  Employers often hire qualified H-1B employees with degrees in a matching or related specialization earned outside of the United States.  All of these cases require the petitioner to clearly show the equivalency to the correct degree (a US bachelor’s degree or higher) in the exact specialization of the H-1B job through specific course content and work experience.

The way to do this is to include a detailed credential evaluation that fills in any gaps between the degree the beneficiary has and the degree the beneficiary needs for visa approval.  This will take the job, the education, work experience, H-1B requirements, and USCIS approval trends into account.  It often requires a work experience conversion in which three years of progressive work experience in the field of the H-1B job can be converted into one year of college credit in the major of the industry.  This conversion must be written by a professor with the authority to grant college credit for work experience.

At CCI TheDegreePeople.com, every credential evaluation is research and written uniquely.  There are no cookie cutter evaluations.  We work with professors with the authority to grant work experience for college credit to write the evaluations our clients need to get their visas approved. 

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 USCIS finds one problem with an H-1B petition, they typically find more.  One red flag leads to a close scrutiny of the case and this leads to complex RFEs like the Double, Triple, and Nightmare RFEs. 

The Double RFE that has become overwhelmingly common since 2017 takes issue with wage level and specialty occupation and beneficiaries making level one wages are hit the hardest.  Computer programmers have been particularly vulnerable to this RFE as well. 

Here is the reasoning for this RFE: 

USCIS makes the wrong assumption that because a job is set at level one wages it is an entry level position.  Then, if the entry-level position for the H-1B job does not ALWAYS require a US bachelor’s degree or higher for entry they assume that the job is not a specialty occupation or the wage level is not set at the prevailing wage for the job.  Of course, USCIS does not pick either or for the RFE; they choose both.

Luckily, you can answer both with one expert opinion letter.  The expert must have extensive experience working in the field of the H-1B job and have experience making hiring decisions regarding this position and similar positions.  This expert must have a full understanding of the industry and be able to articulate the skills required for this position and how they are obtained through the completion of at least a bachelor’s program.  This expert must also articulate how wage level decisions are made.  The more information the petitioner can provide about the job and the factors that went into determining the wage level for this specific employee the better. 

To answer this RFE, you must show that the wage level was set appropriately for the position and the employee.  This could mean a reduced wage level because college education was recently completed but actual work experience in the field is minimal or non-existent.  You must also show that one of four specialty occupation requirements are met:

1. A US bachelor’s degree or higher or its equivalent in the field of the specialty occupation is a minimum requirement for the position.
2. A US bachelor’s degree or higher or its equivalent in the field of the specialty occupation is the minimum requirement for parallel positions at similar companies in the industry.
3. The employer has a documented past practice of requiring an employee hired to this position to hold a minimum of a US bachelor’s degree or higher or its equivalent.
4. This particular position is uniquely specialized as to require the employee to hold a minimum of a US bachelor’s degree or higher or its equivalent to perform its duties.

This requires a detailed breakdown of the duties and responsibilities of the job, the skills required to perform them, and how these skills are learned through attainment of a US bachelor’s degree in the field of the H-1B job.  We recommend choosing two of these requirements, one of them being the fourth option that show how this position is uniquely specialized in and of itself.

At CCI TheDegreePeople.com we work with the RIGHT kind of experts in every H-1B field who can write opinion letters that address both wage level and specialty occupation issues in one letter. 

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.

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.