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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.

H-1B RFE Case Study: Expert Opinion Letter from Professor of Computer Sciences Denied

Last year we had countless clients come to us with specialty occupation RFEs.  Some of them came to us with RFEs that they had tried to get overturned with an expert opinion letter, and failed.

One such client came to us with a specialty occupation RFE for computer programmer.  He had submitted an expert opinion letter with the petition, anticipating issues arising.  However, the expert opinion letter he included in his petition was from the WRONG expert.

USCIS only acknowledges expert opinion letters written by experts that have extensive experience WORKING IN their field of expertise.  Simply being a professor or instructor in the field does not cut it, they need to have a wealth of field experience of their own for their opinion to have the weight it takes to sway USCIS.

At TheDegreePeople.com, we only work with experts with extensive field experience.  While many of our experts are instructors, they also either work now, or have very recently worked directly in the field.  When we send USCIS expert opinion letters, RFEs get overturned virtually every time. 

Of course, the expert opinion letter is only as good as the information provided.  The more details you can give our experts the more credible and convincing their letter will be. 

If you, or if your employee or client received an H-1B RFE for specialty occupation, talk to us.  Be sure to have detailed documentation of the duties and responsibilities of the position, the ad for the job as well as ads for the same position in different companies within the field, and proof of past hiring practices to prove that an advanced degree is the norm for minimum required education for entry into the position.  We will advise you on anything else you may need for your, or your employee or client’s specific circumstance.

For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less.

How to Answer a Double H-1B RFE For Education and Specialty Occupation

RFE season is now, and when CIS finds one problem with a petition, they tend to find more.  Over the past few years, we have seen a common double RFE involving specialty occupation and education issues.

H-1B eligibility rules state that to qualify for H-1B status the H-1B employee must hold a US Bachelor’s degree or higher or its equivalent in the exact field of the H-1B job.  The job must be a specialty occupation, one that requires a minimum of the H-1B educational requirements for entry into the position.  This job must involve theoretical and practical application of a specialized body of skills and knowledge as evidenced by the advanced degree.

This double RFE calls into question whether the job meets specialty occupation requirements, and whether the H-1B beneficiary meets educational requirements.

Some common issues on the job topic are when an occupation sometimes requires this advanced degree minimum qualification, or when the job is set at a low wage level.

Some common issues on the topic of the beneficiary’s education are incomplete college, a degree earned outside of the United States – particularly the Indian three-year Bachelor’s degree, no college or a degree from an unaccredited institution, and having the right degree but in the wrong specialization.

The first issue can be addressed with evidence showing past hiring practices, the ad for the job and similar jobs that show the minimum requirements meet H-1B specialty occupation requirements, a detailed breakdown of the duties of the job, and an expert opinion letter.  This expert opinion letter validates that the job does require specialized knowledge and skill earned through the education required by H-1B statutes, and the expert must have expansive experience working in the field of the specialization, beyond instructing.

The second issue can be addressed with the right credential evaluation that takes the job and the education into consideration, along with H-1B requirements, CIS approval trends, and any training that took place in a classroom setting or through progressive work experience in the field to fill in any gaps between the beneficiary’s education and H-1B job requirements.

At TheDegreePeople.com, we have experts on hand in all fields ready to write the expert opinion letter CIS needs to get the RFE overturned.  All of our experts have extensive work experience in the field.  All of our credential evaluators have been trained to work with difficult RFEs and have expertise in international education and particular visa requirements.  Every credential evaluation is uniquely researched.

If you or your employee or client receives an RFE this summer, time is of the essence.  Visit ccifree.com/ for a free review of your case and advisement of how to best proceed.

H-1B Adjudication Season: What to Expect, How to Prepare

With H-1B filing season over and the lottery completed on April 11^th, 2019, it is now time to wait – and to prepare.

USCIS notifies those who have been selected in the H-1B lottery first, and premium processing cases are expected to be alerted that they were selected by the first week of June, with rejection receipts expected to finally arrive at the end of July.  While beneficiaries cannot contact USCIS directly about their petitions, lawyers and employers can.  Another way to tell if your petition, or if your employee or client’s petition was accepted in the lottery is to check the bank account from which the processing fee check was written to see if it was deposited.  If it was deposited, the petition was accepted.  Again, you may not be able to tell for some months now.

This is not the time to wait.  This is the time to formulate a plan to answer any RFEs or Denial that you or your employee or client may receive.  We anticipate this year to follow the same trends as last year with high RFE and Denial rates, especially effecting Indian beneficiaries, computer programmers, and workers making level one wages. 

According to the National Foundation for American Policy, in the first quarter of 2017 the RFE rate for H-1B petitions was 17.3%.  By the fourth quarter, the rate had jumped to 68.9%.  Looking at last year, the first quarter of 2018 saw a 19.8% rate of rejection for H-1B petitions.  That number climbed to 22.4% by the fourth quarter.

If you or your employee or client is selected in the H-1B lottery, there is a very high chance they will receive and RFE or Denial.  This year, in a USCIS memorandum, adjudicators have been given the authority and encouragement to deny visa petitions outright without first requesting evidence.  We do not know how this will play out in reality, but while a Denial is harder to overturn than an RFE, it is NOT the end of the road.  H-1B RFEs and Denials are successfully answered every year.  It is much easier to do when you plan ahead.

The key is to identify where in your client’s case USCIS is likely to find red flags based on H-1B eligibility requirements and USCIS approval trends.  Petitions from Indian beneficiaries – especially those with three-year Indian bachelor’s degrees – tend to attract RFEs.  Computer programmers, especially those making level one wages tend to attract RFEs.  Candidates with incomplete college, a generalized degree, or a degree specialization that does not match the field of the H-1B job tend to attract RFEs.  These are just a few examples.

At TheDegreePeople.com we work with difficult RFEs every year and we get them overturned with the right credential evaluations and expert opinion letters.  We advise beneficiaries and their teams on what evidence, forms, and documentation they need to proceed, and we come up with creative solutions to virtually impossible RFEs to get them overturned.  For a free review of your case visit HERE.  We will get back to you in 48 hours or less.

Ready Plan B Before H-1B RFE Season Begins

On April 11^th, USCIS completed the H-1B lottery.  This year, 201,011 H-1B cap subject petitions were filed from April 1^st to April 5^th.  That’s about 11,000 more petitions than last season. 

This year, H-1B candidates with advanced degrees of a US Master’s degree or higher had a 16% greater chance of being selected for the lottery because of the advanced degree reversal.  In previous years, the 20,000 advanced degree visas were selected before the general lottery, and the remaining petitions were thrown in with the general lottery.  This year, the general lottery is selected first which includes candidates with advanced degrees.  Those with advanced degrees who were not selected in the general lottery were then pooled into the advanced degree lottery.  If you or your employee or client holds an advanced degree or its equivalency, this is an opportunity you don’t want to miss to increase their chance of lottery selection.

Beneficiaries are estimated to find out sometime in June whether they made it or not.  Another way to find out if your petition, or if your client or employee’s petition was selected in the lottery is to look at the bank account from which the check for the filing fee was written.  If the check has been cashed, it means you or your employee or client was selected in the lottery. 

If you or your employee or client is selected in the H-1B lottery, there is a high chance that this selection comes along with an RFE.  We have seen a sharp increase in the rate of RFEs over the past few years, and we expect this trend to continue.  Along with the rising rate, we have also seen common RFEs become more and more complicated, time-consuming, and expensive to answer.  Having a Plan B in place and ready to implement when the answer comes in June is essential to making sure everything is in order for the start of fiscal year 2020 on October 1^st.

To formulate a Plan B, you need to understand where red flags or questions could be raised in your client’s case.  Three-year bachelor’s degrees, incomplete college or mismatched education, level one wages, and jobs that sometimes don’t require a US bachelor’s degree or higher as a clear industry standard are just a handful of the common problems H-1b beneficiaries have been facing.  At TheDegreePeople.com we work with difficult H-1B RFEs every year and we have a good understanding of what tends to trigger them.  Let us review your case to help you formulate a Plan B to stay one step ahead this RFE season.  For a free review of your case visit HERE.  We will get back to you in 48 hours or less.