Uncategorized

At CCI TheDegreePeople.com we work with difficult H-1B RFEs every year, and over the past two years, we have seen a disproportionate number of specialty occupation RFEs for jobs that have never before been called into question.  This RFE and Denial trend was recently confirmed by the declassification of USCIS documents that fundamentally increased the burden of proof on the petitioner with no notice to the public.

These adjudication changes have no basis in changes to laws or regulations governing how H-1B visas can be approved or denied.  While immigration attorneys are taking USCIS to court over illegal denials, we are doing our part to get these RFEs overturned, and the way we do it is with an expert opinion letter.  The opinion of an expert in the field of the H-1B job as to whether or not the job meets specialty occupation requirements can successfully overturn an RFE, if these two crucial steps are followed:

1. Get the RIGHT expert.

USCIS accepts the opinion of some experts, but not others.  The RIGHT expert is a professional with years of experience working directly in the field of the H-1B visa.  If the expert has only instructed in the subject area but has limited or no field experience, USCIS will not accept that their credentials qualify them to write the opinion letter.

2. Provide the expert with as much documentation and detail as possible.

To prove the H-1B job is a specialty occupation, it must be clear that the job is so specialized and complex as to require the employee to hold a minimum of a bachelor’s degree or higher in the field of the specialization.  This can either be shown to be an industry standard for the position, or that this position for this employer is uniquely specialized.  To do this, you must provide a detailed job description outlining the specialized duties and responsibilities of the position, as well as proof of past hiring practices to show that the employer requires a bachelor-level degree in the field of the H-1B job as a minimum qualification to hire to the position in question.  You will also need to provide the ad for the job, ads for the same position for similar companies in the industry and be sure that the job description is an accurate match for the occupation and soc code selected on O*Net.  The more information you can provide to the expert, the better equipped they will be to write the opinion letter you need, or that your employee or client needs to get the RFE overturned.  As such, the more documentation you can provide USCIS to support the expert opinion letter the better your chance of success.

At CCI TheDegreePeople.com we work with experts in every H-1B field, and all our experts have the extensive field experience USCIS requires to give weight to their opinion letter.  We understand that when it comes to answering an RFE time is of the essence, and therefore we offer rush delivery options to suit your needs.  For a free review of your case, visit ccifree.com/.  We will get back to you in 48 hours or less.

The American Immigration Lawyers Association released USCIS documents following the settlement of a FOIA lawsuit that confirm their suspicions that USCIS has been limiting H-1B visas without legal precedent.

The USCIS documents made public are “H-1B RFE Standards” from March 23, 2017, and “H-1B AC21 Denial Standards, from July 17, 2017.  These changes followed the Trump administration’s policy of “Buy American, Hire American,” and intentionally restricts highly skilled foreign workers from US jobs.  These documents show USCIS adjudicators were instructed to deny visas in a way that breaks with legal precedents, overreaching Department of Labor regulations, and doing so without any regulatory or legal changes to base these sweeping changes in.

The two major points of impact are the limited scope of the employer-employee relationship, and specialty occupation.  These changes have already begun to hurt STEM industries in the United States.  The same companies that had over 50% of their initial H-1B filings denied in FY2019 only had a 4% or lower denial rate in FY2015.  This reflects the overall trend of denial and RFE rates skyrocketing without any changes to H-1B regulations.  In FY2015, the H-1B denial rate was 6% compared to 32% in the first quarter of FY2019 with over 60% of petitions receiving RFEs and only 60% of those getting approved.

Before the FY2017 memos, H-1B employees could be placed on non-productive status when there is lack of work provided by their employer, so long as the employee continues to be paid their prevailing wage salary.  This is based on a 1998 law stating that the employer-employee relationship persists even on non-productive status.  Now, to avoid Denial or RFE, employers must provide a complete itinerary of the H-1B employee’s work schedule for the duration of the visa. 

Before the FY2017 memos, jobs qualified as specialty occupations if the normal requirement for minimum educational standards for entry into the position is a US bachelor’s degree or higher or its equivalent. Now, for jobs like computer programmer and other common H-1B STEM jobs, if the US Department of Labor Occupational Outlook Handbook states that sometimes employers will hire employees to the position with less than the stated H-1B requirements, the position does not meet specialty occupation standards. In doing this, the interpretation has changed from the educational norm to the exception when adjudicating whether or not a position meets specialty occupation standards. 

Both of these changes put a much heavier burden of proof on H-1B petitioners.  These adjudication directions were changed without notification to the public, and without any changes to law or regulation.  Many have wondered if the RFEs they receive are even legal and the answer is no. 

Does that mean if you receive a Denial or RFE there is no hope for visa approval?  Absolutely not.  At CCI TheDegreePeople,com we work with difficult RFE and Denial cases every year.  While the past two years have seen a sharp increase in the rate of RFEs and Denials, the complexity and difficulty of answering these RFEs is no different from complex situations we have seen in the past.  For example, the Nightmare RFE has been around for years, calling virtually everything about a case into question and being virtually impossible to answer by its own instructions.  We have an over 90% success rate in answering these RFEs.  Over the past two years, we have an over 90% success rate in answering Specialty Occupation and Wage Level RFEs.  It just takes going back to the basic H-1B requirements and working from there with a creative approach and an understanding USCIS approval trends.

Declassification of these documents helps us understand what it really is USCIS needs to know about your case to approve the visa.  Don’t let sliding approval rates be discouraging, we can help.  Visit ccifree.com/ for a free review of your case.  We will get back to you in 48 hours or less.

The rate of H-1B petitions receiving an RFE instead of outright approval has skyrocketed to 60%.  That means if you, or your employee or client filed an H-1B petition back in April and made the lottery, they most likely received an RFE.  Of those 60% who received RFEs, just 60% of those RFEs are overturned and the visas are approved. 

These are not great odds, but there are steps you can take to ensure you, or your employee or client has the best chance of getting into that 60% of RFEs turned into visa approvals.

Here’s how:

First, go back to the basics.  USCIS requires that the H-1B worker holds a US bachelor’s degree or higher in the exact field of the H-1B job.  The H-1B job must require a minimum of a US bachelor’s degree or higher to perform.  This could either be an industry standard or a unique situation as evidenced by the high degree of complexity of this job and past employer hiring practices.  There must be an employer-employee relationship in which the employer can hire, fire, and otherwise control the work the H-1B employee performs, and the H-1B employee must make the prevailing wage for the job in that geographical location for companies of that size.

Second, sit down with your team and read the RFE carefully.  Try not to get too bogged down in the demands made by the verbiage of the RFE as many complex RFEs are virtually impossible to answer by their own instructions. 

Third, put the RFE down and determine which of the original H-1B eligibility requirements USCIS took issue with your case, or your employee or client’s case.  In which areas is your case, or your employee or client’s case lacking, and what evidence and documentation is needed to fill in the gaps?

Specialty occupation issues tend to go hand in hand with wage level issues.  Both can be addressed with an expert opinion letter written by an expert in the field of the H-1B job who has extensive field experience beyond just teaching in the field.  This letter is only as good as the evidence you provide the expert detailing the practical and theoretical application of a body of highly specialized knowledge and skill necessitated by the day-to-day duties and responsibilities of the job.  You will also have to provide evidence of industry or company hiring standard.  You will also have to detail what factors went into setting the wage level as it is.

Education issues can be addressed with the right credential evaluation.  Common education issues arise when an employee has a degree in a field other than the exact field of the H-1B job, a generalized degree, incomplete college, no college, or a degree earned in another country.  In all of these instances, the right credential evaluation that takes the job, education completed, and the H-1B beneficiary’s work experience into consideration, along with H-1B education regulations and USCIS approval trends.

At CCI TheDegreePeople.com, we work with difficult RFEs with a 90% and higher rate of success.  We work with experts in all H-1B fields and all of our credential evaluations are uniquely researched and written to address the situation.  Don’t take chances with answering an RFE.  Visit ccifree.com/ for a free review of your case, or your employee or client’s case.  We will get back to you in 48 hours or less.

Over the past three H-1B cap-subject seasons, we have seen an unprecedented rise in specialty occupation RFEs calling jobs into question that had never run into trouble before.  This trend is echoed across the entire H-1B visa program, with overall approval rates plummeting from over 80% in 2015 to around 60% for FY2019. 

USICS approval trends changing, however, is nothing new.  Before the rise of the specialty occupation RFE, education issues were the big change.  USCIS began issuing RFEs for petitions in which the employee held an advanced degree in a related field, requiring the employee have a degree in the exact field of the H-1B job.  This threw a wrench in the system but we learned how to successfully answer these RFEs with detailed credential evaluations and creative solutions. 

The biggest solution when addressing difficult RFEs of any kind are to go back to the basics and go from there.  It worked with education RFEs, and we have seen widespread success with it when facing specialty occupation RFEs. 

There are two main standards that must be met to qualify for H-1B status.  Although USCIS has raised the burden of proof to meet these standards, these two rules continue to be the guide to overturn an RFE.  The H-1B job must require a minimum of a US bachelor’s degree or higher to perform, and the H-1B employee must hold that degree or its equivalent.  In the recent past, the issue was to prove the employee had a degree in the exact field of the H-1B job, which often required a credential evaluation to fill in the gaps between the employee’s education and the H-1B job.  Now, we have to go several steps further in a similar way to prove that the H-1B job meets specialty occupation requirements.

In the past, jobs that typically required a minimum of a US bachelor’s degree or higher as an industry standard were making the cut.  Now they do not.  One major example of this is the job of computer programmer.  According to the US Department of Labor’s Occupational Outlook Handbook, sometimes employers will hire to this position with just an Associate’s degree.  In the past, the exception was not viewed as the norm, but now USCIS is adjudicating as it is.  To prove specialization, you and your team need to go further to prove why the job in question meets specialty occupation requirements despite the exceptions.

You will need to provide a detailed breakdown of the duties and responsibilities of the job that highlight the ways in which specialized skills and knowledge are applied theoretically and practically.  You will also need to show similar ads for the same job in similar companies in the industry to prove that a US bachelor’s degree or higher is the minimum requirement as a standard, as well as evidence of past employer hiring practices that show this minimum education requirement as a standard for this particular job. 

Along with this documentation, you will need to provide an expert opinion letter.  This expert must have extensive field experience as USCIS has rejected opinion letters from instructors and professors in the field who have not worked directly in the field beyond instructing it.  The expert will look over all of the documentation you have prepared for your RFE response and lend their opinion that this job does meet specialty occupation requirements.  At TheDegreePeople.com we have the right experts on hand in every field, and our experienced staff can help you work through the jargon of even the most difficult RFEs as we work with them every year.

USCIS approval trends change every year, and this challenge is no different.  Start by going back to the basic eligibility requirements and work diligently from there.

Remember, you only have 90 days from when you receive an RFE to respond to it.  Time is of the essence and waiting until the last minute will just hurt your chances of success.  For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less.

How to Fight the H-1B Specialty Occupation RFE and Why it’s Important

Over the past two years, H-1B jobs that had previously been approved as specialty occupations – such as electrical engineer or computer programmer – are now receiving RFEs as responses to initial petitions instead of approval.  This is because USCIS has raised its standards of proof without a new law or regulation, and without notice.

While USCIS approval trends change from year to year – and there are never any guarantees with USCIS – this change was sudden, drastic, and is a threat to STEM industries in the United States.  Already H-1B restrictions are causing major STEM companies from expanding their business to the United States, and deterring international students from enrolling in US undergraduate and graduate schools, as the option to stay in the United States to work under H-1B status is a major impetus for these bright students to come in the first place.  Only 20% of graduate students in US schools studying electrical engineering and computer sciences are US citizens.  We need the other 80% to keep STEM industries in the US alive.

If you have received, or if your employee or client received a specialty occupation RFE this season, it is important to fight it, not just for this individual case, but for the health of the H-1B program and for the survival of STEM industries in the US.  At TheDegreePeople.com, we have answered countless specialty occupation RFEs successfully.  Here is how we do it:

First, we ask the beneficiary and petitioner to provide as much evidence and documentation they can to support the specialization and complexity of the position in question, as well as a breakdown of the factors that went into setting the wage level.  Specialty occupation issues often come hand-in-hand with wage level issues in this double RFE.  We prefer to answer them both at once to save time, and also to prevent a second round of RFEs in the future.  Include the ad for the job that shows a minimum educational requirement of a US bachelor’s degree or higher or its equivalent, different ads for the same position in similar companies showing this minimum educational requirement, and proof of past employer hiring practices that show the petitioner regularly hires employees to the position in question with this minimum educational requirement.  Also include a detailed breakdown of the duties and responsibilities of the job to highlight the theoretical and practical application of specialized skills and knowledge.

Second, we will take what you gave us and pass it over to an expert in the field of the H-1B job.  The expert will write an expert opinion letter explaining why this job meets USCIS specialty occupation requirements.  We work with experts in all H-1B industries, all of whom have extensive experience working IN THE FIELD.  USCIS will not accept expert opinion letters from professionals who are instructors or educators in the field alone.  The expert must have extensive field experience for USCIS to accept their opinion and approve your visa, or your employee or client’s visa.

Let us help you overturn your specialty occupation RFE, or your employee or client’s specialty occupation RFE.  Visit ccifree.com/ for a free review of your case and consultation.   

Over the past two years, lawyers, employers, and H-1B beneficiaries have suspected USCIS raised its standard of proof for H-1B visa approval without any new law, regulation, or notice to the public.  This was evidenced anecdotally with jobs that had never before been called into question for meeting H-1B specialty occupation requirements suddenly being hit with an unprecedented rate of RFEs instead of approvals, like computer programmer and engineer.

When USCIS released its H-1B Employer Data Hub, it became clear these suspicions were correct.  The National Foundation for American Policy analyzed the report and found that, “Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for initial H-1B petitions never exceeded 8%, while today the rate is 3 to 4 times higher.”

Following the notorious April 2017 executive order, “Buy American, Hire American,” denial rates for initial H-1B petitions nearly doubled from 13% in FY 2017 to 24% in FY 2018, and then climbing to 32% in the first quarter of 2019.  H-1B extensions and transfers saw similar spikes even though these petitions are for workers who had previously been approved and for jobs that had previously been approved.  The same workers and the same jobs that qualified just a few years ago are now being denied at unprecedented rates.  In FY 2017 the denial rate for these petitions was 5%.  The rate more than doubled in FY 2018 to 13%. 

Along with this statistic, the top 27 employers of workers holding H-1B visas all experienced denial increases between FY 2015 and the first quarter of FY 2019 for H-1B extension petitions.  These are petitions for the same job and worker that were previously approved. This shows that the standard of proof has changed without any new law, regulation, or notice to the public.  The same workers and jobs that met H-1B requirements just a few years ago suddenly do not.

USCIS is restricting H-1B visas, as evidenced by their denial trends.  This is beginning to have what may turn into catastrophic effects for STEM industries in the United States.  Already, STEM businesses that are expanding internationally are choosing to open branches elsewhere.  International students are choosing to go to other countries for undergraduate and grad school because job prospects following their education in the US rely on the H-1B program.  At this time, only 20% of all graduate students in US schools studying computer sciences and electrical engineering – fields the STEM industries depend on – are US citizens.  It has been known for a long time that STEM industries in the US depend on the H-1B program to remain globally viable.If you, or if your employee or client receives an RFE or Denial this H-1B season, it is imperative that it be fought.  The burden of proof is higher now than it has ever been before, and that means we need stronger petitions, and strong RFE responses.  For a free review of your case, visit ccifree.com/.  We will get back to you in 48 hours or less.

The numbers show that the same specialty occupations approved for H-1B visas just a few years ago are now being called into question. 

According to Forbes, in FY2017 only 3% of H-1B extension petitions were denied.  These petitions are for beneficiaries whose H-1B visas were previously approved.  Then, in FY2018, the denial rate more than doubled, jumping to 12%, and then to 18% in the first quarter of FY2019.  All of the top 27 employers of H-1B beneficiaries experienced this spike in denials for the same jobs they had been approved for.

Meeting specialty occupation requirements for H-1B visa approval has become much more difficult.  Jobs that had never before been called into question are now met with RFEs.  One of these is the job of engineer.

Last year we had dozens of clients come to use with specialty occupation RFEs for engineer.  They were caught off guard because they did not expect they would have to defend the complexity of their job.  These are different times, and it is essential to submit the initial petition in anticipation of a specialty occupation RFE.  Last year, these RFEs were successfully answered with detailed documentation of the duties, responsibilities, and day-to-day tasks of the job that show practical and theoretical application of a highly specialized body of knowledge and skill.  Petitioners also had to include the ad for the job, ads for the same job for different companies in the industry, and the employer’s past hiring practices to prove that requiring a minimum of a US bachelor’s degree or higher or its equivalent is the standard for the position in question.  All of this documentation was shared with an expert in the field with extensive field experience.  At TheDegreePeople.com we work with experts in all H-1B fields.  Our engineering experts used the information provided by petitioners to write the expert opinion letters needed to overturn specialty occupation RFEs. 

When all of this is submitted with the initial petition, it greatly cuts a beneficiary’s chance of receiving a specialty occupation RFE.  While there are no guarantees with USCIS, we always keep an eye on their approval trends, and meet each year’s new challenges with expertise and tact.  If you, or if your employee or client received a specialty occupation RFE, we can help.  Visit ccifree.com/ for a free review of your case.  We will get back to you in 48 hours or less.

RFE Season is Rolling in with MORE Specialty Occupation RFEs

Every year, a higher percentage of H-1B beneficiaries selected in the lottery receive an RFE this time of year instead of outright visa approval.  If you, or if your employee or client received an H-1B RFE this year, there is a high probability that is was a specialty occupation RFE.

Last year, USCIS bombarded H-1B petitioners with RFEs questioning whether their job met the requirements for “specialty occupation.”  H-1B visas are work visas for foreign employees working jobs that require a minimum of a US bachelor’s degree or higher or its equivalent, and require application of specialized knowledge, skill, and understanding to perform.  Last year, jobs that had never before been called into question were receiving these RFEs.

Here is how to handle them:

1. You will need to provide the ad for the job that shows the degree requirement along with ads for the same position in the industry working for similar companies to show that the degree requirement is an industry standard.

2. You will need to provide evidence of past hiring practices for the company to show a consistent history of hiring employees with these advanced credentials.  If this job is particularly specialized in a way that is not represented by an industry standard, this is especially important.

3. You will need to provide a detailed description of the duties and responsibilities of the job that clearly show application of specialized knowledge, understanding, and skill.

4. You will need to provide an expert opinion letter from a professional with extensive field experience in the industry.  An instructor will NOT cut it unless they are also working in the field.  The strength of this expert opinion letter will depend on how much information you can provide them from the first three points.  The more details you can provide, the stronger case they can write to explain to USCIS why you, or your employee or client has been hired to a specialty occupation.

At TheDegreePeople.com, we have experts in all industries on hand 24/7 to write the opinion letter you need, or your employee or client needs to address that H-1B specialty occupation RFE.  For a free review of your case, visit ccifree.com.  We will get back to you in 48 hours or less.

Case Study: The Right Credential Evaluation to Overturn an H-1B RFE

During H-1B RFE season, we have beneficiaries come to us every year with education RFEs.  We always tell our readers to NEVER submit a petition without a credential evaluation IF the education is incomplete, in a different degree than the field of the H-1B job or a generalized degree, or from a different country.  They listen.  They order a credential evaluation and they get an education RFE anyway.

What went wrong?

First of all, the foreign credential evaluation industry has very little oversight or overall governing principles.  Every credential is different, and every situation the evaluation is needed for is different.  That is why TheDegreePeople.com is a member of the International Center for Academic Excellence, a membership organization that enforces standards of excellence for its members in an industry with very little oversight.  All companies are required to maintain their own current research libraries for individual credential evaluations rather than doing what most agencies do, which is write a cookie-cutter evaluation based on an online database.

Order an evaluation from an agency that applies a cookie-cutter solution to an individualized issue, and you’ll end up with an RFE every time.  These RFEs call the authority of the credential evaluator into question, but they are also issued because the evaluation does not address the job, or the visa requirements.

When choosing the correct credential evaluator, make sure the agency is a member of a professional membership organization with high and enforceable standards of excellence.  They should be responsive when you contact them and offer affordable rates.  They should ALWAYS ask about your job and your visa.  Different visas have different regulations for how to construct academic equivalencies.  For example, with the H-1B visa, a beneficiary who has a US Bachelor’s degree in Chemistry and an H-1B job in Engineering needs the equivalency of a US Bachelor’s degree in Chemistry to get the RFE overturned.  With H-1B, an evaluator could write a work experience conversion that equates three years of progressive work experience in the field of Engineering into one year of college credit in the major of Engineering.  Combining college credit and work experience to make the correct degree equivalency can work like this for H-1B, but not for other visa classifications like EB-2 in which the Bachelor’s degree must be a single source. 

If you, or your employee or client received an Education RFE, we can write the RIGHT credential evaluation needed to get that visa overturned.  For a free review of your case, visit ccifree.comhttp://ccifree.com/?CodeBLG//.  We will get back to you in 48 hours or less.