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Immigration

2018 RFE Trends – BEFORE you file that LCA

Credential Evaluation, Immigration, Visa Approvals

Here’s the problem: when a job doesn’t exactly meet any of the titles offered on the LCA and ALL OTHERS is checked, CIS cannot reference the US Department of Labor’s Occupational Outlook Handbook (OOH) to see if the job in question meets H1B specialization requirements.

We have seen ALL OTHERS checked even when there is a SOC code for the exact position in question. Since ALL OTHERS is checked rather than the position with a SOC code that corresponds to an OOH entry, this takes a case that would have been relatively straightforward and turns it into a problem.

The best solution is prevention. It is always better to select an occupation with a SOC code for a position listed in the OOH on the LCA and in the petition. No material changes are allowed once you file. If you filed a certified LCA for the correct SOC before the filing date of the petition, the attorney may make corrections and explain, but CIS will not always accept this.

It is possible to get these RFEs overturned if you can show past employment practices and industry standard for the position in question meet H1B specialization requirements. CIS, however, has shown a tendency to find issue with these explanations making it hard for employers to prove past employment practices, especially if there were mistakes made in minimum educational requirements for the position in the petition letters and the job posting.

We have been told that employers will indicate the position ALL OTHERS instead of a position with a SOC code that corresponds with an entry in the OOH to effect the wage level assigned to the position, but in practice it just doesn’t do that.

The best course of action is to try to establish industry standard for the position and to document the details of the daily duties of the position to prove the level of complexity meets the H1B specialization requirement of requiring a US bachelor’s degree or higher or its equivalent to perform.

Let us review your case and work with you to determine the best course of action to get that RFE turned into an approved H1B visa. Simply visit ccifree.com/ and we will get back to you in 48 hours or less. Every year, there is a new difficult RFE that blindsides H1B petitioners, and every year, we find a way to get them overturned.

2018 RFE Trends – BEFORE you file that LCA Read More »

Specialty Occupation and Wage Level H1B RFEs: Who Dropped the Ball?

Credential Evaluation, Immigration, Visa Approvals

If you or your employee or client receives an RFE, don’t panic. RFEs have become very common, and can be a helpful tool to fortify the case for approval. Sit down with your team and carefully read through the RFE, then put the RFE down and go back to the original H1B eligibility requirements and see where the case is lacking. In this process, it is important to see who dropped the ball, and how to pick it back up. This does not mean pointing fingers, placing blame, or spouting anger. Oftentimes the reason for the RFE is changing CIS approval trends. Sometimes it’s no one’s fault.

Specialty occupation and wage level RFEs jumped ahead of education RFEs in response to last year’s lottery. H1B requirements state that to be eligible for this visa the job must require a minimum of a US bachelor’s degree or higher or its equivalent to gain entry into the position. This must be an industry standard, or you must go a step further to prove that this position is uniquely specialized and holding an advanced degree is consistent with employer hiring practices. The job must also pay the prevailing wage for the job in the industry, for companies of that size in that geographical location.

Last year, computer programmers making level 1 wages were hit especially hard with RFEs. CIS claimed that since some employers will hire entry-level computer programmers with only an associate’s degree, the job does not meet specialization requirements, or the wage level is not set correctly. One of the main problems with the reasoning for this RFE is that wage level does not necessarily determine the specialization of the position, rather it is set in accordance with the prevailing wage and takes the level of training and supervision required for the employee into consideration as well.

Specialty occupation RFEs and wage level RFEs are so interconnected they often come together. Now that we know what we’re dealing with, let’s see where the fault may lie.

Sometimes it’s nobody’s fault. CIS approval trends change, and the best we can do is learn for the approval trends of last year, and what RFE responses worked and which ones did not. Sometimes it’s CIS’ fault. You could file an immaculate petition and still receive an RFE. CIS could be unreasonable with their justification for the RFE, or just plain wrong. Whatever the reason, you still must answer it.

Sometimes the attorney will make a mistake when filing, there will be omitted pages in the petition, or it will be filed out of order. Sometimes it’s the beneficiary’s fault. Providing poorly translated educational documents, misconceptions about the value of a credential’s academic value, and providing misleading or false information in resumes happens. These mistakes are not necessarily on purpose, even if it involves providing false information. Sometimes names are misspelled or answers are inconsistent from one document to the next.

Sometimes it’s the employer’s fault. Maybe the job really is set at the wrong wage level. Maybe the job indicated in the LCA is different than the job title in the petition. Inconsistencies across documents are easy mistakes to make, especially in the rush to file by April 1st, but these mistakes have far-reaching consequences. Maybe your team didn’t provide enough detailed evidence regarding the duties and responsibilities of the job in question.

Whatever the reason for the RFE, it’s important that you identify where the case is lacking in evidence, whose job it is to provide it, and fix it. At TheDegreePeople, we work with difficult RFEs every year. We can help you identify what went wrong and how to fix it. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.

Specialty Occupation and Wage Level H1B RFEs: Who Dropped the Ball? Read More »

Case Study: H1B Specialty Occupation RFE – OVERTURNED

Credential Evaluation, Immigration, Visa Approvals

Last year, we saw an influx of RFEs regarding whether the job in question was specialized to meet H1B requirements.

To meet H1B specialization requirements, the position must require a minimum of a US bachelor’s degree or higher, or its equivalent for entry into the position. This must be an industry standard, or you must prove that this position is uniquely specialized so as to require the employee to hold an advanced degree. If CIS has any reason to doubt the job meets specialization requirements, they will issue an RFE.

The most common occupation in question last season with computer programmers making level 1 wages. This RFE was widespread and had candidates, employers, and their lawyers blindsided. At TheDegreePeople, we were able to get the vast majority of these RFEs overturned. One of these cases was a man with a US bachelor’s degree in computer programming. He was hired as a computer programmer at level 1 wages because he was fresh out of college and although he had the skills and knowledge from his college education, he had very little on the job experience and would need a high level of training and supervision to start. Therefore, his employer set the position at level 1 wages.

While there was no question about our client’s educational eligibility, CIS issued an RFE about the job. This is because in the Occupational Outlook Handbook, it states that sometimes employers will hire entry level computer programmers with only a US associate’s degree, even though a bachelor’s degree is the norm.

There were two problems with CIS’ reasoning for this RFE:

  1. A position being set at level 1 wages does not mean it is an entry level position. There are many factors that go into determining what wage level a position is set at.
  2. Most employers require a minimum of a bachelor’s degree for this position, and that is what the standard SHOULD be for determining the overall level of specialization for a given position. The norm, not the exception, should define the rule.

With an expert opinion letter from TheDegreePeople, the RFE was overturned and our client’s visa was approved.

If you, or your employee or client receives a Specialty Occupation RFE, let us help you. Visit ccifree.com/. We will get back to you in 48 hours or less with a no-charge and no-obligation review of your case.

Case Study: H1B Specialty Occupation RFE – OVERTURNED Read More »

Back to the Basics: How to Answer a Difficult H1B RFE

Credential Evaluation, Immigration, Visa Approvals

Ten years ago, receiving an H1B RFE was a relatively rare occurrence. Today, H1B applicants have about a one in three chance of getting an RFE instead of an approval.

What does this mean for FY 2019 H1B beneficiaries? There is a strong chance the petition will receive an RFE. This does not mean the end of the case, it’s a chance to fortify the case for approval. If you, or your employee or client receives an H1B RFE – even if it’s a double employment issue RFE or the Nightmare RFE that is virtually impossible to answer by its own instructions – the first step is to read it through carefully. Then, put it down and go back to the basics.

Go back to the original H1B eligibility requirements and identify which one is lacking in supporting evidence.

For a job to qualify for H1B eligibility, it must be a specialty occupation. That means as a minimum for entry into the position, the candidate must have a US bachelor’s degree or higher or its equivalent. CIS requires the degree be in the exact field of the H1B job, even if an employer will hire a candidate with a degree in a related field. That means if the job and the degree are not an exact match, evidence must be provided in the petition to fill in the gap. If this job in question does not typically require an advanced degree but this position is uniquely specialized, evidence clearly explaining why accompanied by an expert opinion letter to back it up is required to answer RFEs pertaining to this issue.

The H1B beneficiary must be earning the prevailing wage for the job as is consistent with that position, in that industry, in companies of that size, in that geographic location. If this is the issue, you will need to provide documentation of the employee’s wages and the factors that went into determining the wage level accompanied by an expert opinion letter to support why the wage level is set as it is.

If the RFE inquires into both of these issues, you do not need two separate expert opinion letters. At TheDegreePeople.com, we work with experts in all industries who can cover both concerns with one letter, which means you only have to order one.

For a beneficiary to meet H1B eligibility requirements, they must hold the necessary degree in the necessary field. This gets tricky when candidates need to meet the degree requirement through means of equivalency. H1B requirements state the candidate must hold the US bachelors degree or higher or its equivalent. Candidates with education from outside of the United States, incomplete education, no formal college education, or the right degree in the wrong specialization need to submit a detailed credential evaluation along with the RFE response. This evaluation must be written with consideration of the job and the specific requirements of the H1B visa. Often, a candidate’s work experience must be added to the degree to meet specialization requirements, or to account for missing years – because of incomplete college or from a 3-year degree to account for the missing fourth year.

At TheDegreePeople, we understand that every pathway through education is different, and therefore never write a cookie cutter evaluation. We take the individual, the job, and the visa requirements into consideration along with CIS approval trends. Every year, we work with difficult RFEs and every year we answer them successfully.

For a free review of your case visit ccifree.com. We will get back to you in 48 hours or less with an analysis, pre-evaluation, and our recommendations.

Back to the Basics: How to Answer a Difficult H1B RFE Read More »

H1B Specialty Occupation RFEs: How to Prove Specialization

Credential Evaluation, Immigration, Visa Approvals

A common RFE we see every year is the Specialty Occupation RFE. Last year, we saw an unprecedented number of RFEs that brought up this issue pertaining to computer programmers making level 1 wages, but this issue can affect any H1B job.

To qualify for H1B status, a job must require a minimum of a US bachelor’s degree or its equivalent to gain entry into the occupation. When determining whether a job meets this requirement, CIS references the US Department of Labor’s Occupational Outlook Handbook to see what the general industry requirements are for the job at that wage level.

There are several problems that may arise to trigger a specialty occupation RFE here:

  1. While it is not an overall industry standard, this particular job is so uniquely complex that it requires an advanced degree.
  2. Some employers will hire employees for this position without a minimum of a US bachelor’s degree under specific circumstances even though having an advanced degree is an industry requirement.
  3. The wage level set for this particular job is misleading. This was the case with computer programmers making level 1 wages that set off the string of RFEs last season. Just because a job is set at level 1 wages doesn’t mean it’s an entry level position – there are many factors that go into determining wage levels.

If you, or your employee or client receives a Specialty Occupation RFE, make sure to thoroughly read the passage from the Occupational Outlook Handbook about your client’s job to see if the discrepancy that triggered the RFE is in the text. Then, you will need to provide evidence that this job requires an advanced degree. Evidence includes the ad for the job and ads for the same job in similar companies with in the industry that shows the degree requirements. You can also include evidence that the employer in question has a consistent history of hiring employees to this position with this advanced degree as a minimum requirement.

In addition to this evidence, you will also need an expert opinion letter that backs up the evidence provided. At TheDegreePeople, we work with experts who have the highest rate of success in answering Specialty Occupation RFEs. For a free review of your case, visit ccifree.com We have experts on hand to help you 24/7.

H1B Specialty Occupation RFEs: How to Prove Specialization Read More »

H1B RFE Alert: Wage Issues

Credential Evaluation, Immigration, Visa Approvals

One of the central H1B qualifying components is that the H1B employee must be paid the prevailing wage for the job, in companies of that size, in that industry, in that geographical location.

CIS uses the US Department of Labor’s Occupational Outlook Handbook to determine what wage levels are appropriate for each job, and if your wage level, or your employee or client’s wage level does not match the job indicated, In some cases, wage level issues arise because CIS assumes the wage level assigned by the employer is too low for the level of specialization required to meet H1B requirements. A common RFE we saw last year was the Level 1 Wages RFE that effected computer programmers making Level 1 Wages because CIS assumed that the wage level indicated it was an entry level position.

There are many components that go into determining wage levels. If you or your employee or client receives a Wage Issues RFE, it means the petition didn’t include enough evidence to show that the H1B worker would be earning the prevailing wage for the job. If the wage level doesn’t match the job title indicated in the Occupational Outlook Handbook, you will need to include an expert opinion letter in the RFE response that clearly explains why the wage level is appropriate for this specific job, and thus meets H1B wage requirements.

At TheDegreePeople, we have experts on hand 24/7 with the highest rate of success in answering Wage Issue RFEs. For a free consultation, visit ccifree.com.

H1B RFE Alert: Wage Issues Read More »

Right Degree, Wrong Major: How to Avoid an EB2 Education RFE

Credential Evaluation, Immigration, Visa Approvals

Green card beneficiaries seeking EB2 status need to either hold a US master’s degree or a US bachelor’s degree followed by five years of progressive work experience, or the equivalency of one of these requirements.

What if you, or your employee or client holds a degree with a major in a field related to the EB2 job? Employers will often hire workers with degrees in related fields because there is enough skill and knowledge overlap to ensure the worker will be able to perform the duties of the job. Then, CIS will not approve the visa.

In recent years, CIS has tightened its approval standards, only approving beneficiaries with degree specializations that exactly match the job title on the PERM. If you, or your employee or client has a degree in a related field that doesn’t exactly match the EB2 job, you need to include a credential evaluation with the petition that meets equivalency requirements by specific EB2 standards.

This is where the second problem arises: for EB2, the bachelor’s degree must be a single source. That means you must, or your employee or client must either have a US bachelor’s degree in the exact field of the EB2 job, or enough years of progressive work experience to account for the entire degree equivalency. That’s twelve years of progressive work experience because a professor with the authority to grant college credit for work experience can convert three years or work experience in the field into one year of college credit.

At TheDegreePeople, we have developed several creative strategies to address degree equivalencies for EB2 to prevent the mismatched education RFE from years of working with EB2 cases and their RFEs. For a free review of your case, or your client or employee’s case, visit ccifree.com.

Right Degree, Wrong Major: How to Avoid an EB2 Education RFE Read More »

Case Study: The Triple H1B RFE – OVERTURNED!

Credential Evaluation, Immigration, Visa Approvals

We saw them last year, and we have the experts with the highest rate of success to help overturn them. Coming up on RFE season, it’s important to keep in mind that many RFEs cannot be answered by their own instructions. The solution is to go back to the original H1B requirements and make sure they are clearly met, documented, explained, and backed up by expert opinion.

To be eligible for an H1B visa, the job must be a specialty occupation, which means as a minimum requirement the employee must hold a US bachelors degree or higher or its equivalent in the field of the job. The beneficiary must have this degree or equivalency to meet H1B requirements, and the employer must pay the beneficiary prevailing wages and benefits for this position for companies of that size in that geographical location.

In answering the Triple RFE, you need to do three things:

First, the job in question must meet the criteria of a specialty occupation. This can be done in one of three ways:

  1. The job requires a US bachelors degree or higher.
  2. A US bachelors degree or higher is a normal minimum requirement for this position for the industry in similar companies.
  3. This particular job is uniquely complex so as to require a US bachelors degree or higher to perform its duties.

Second, it must be proven that Level 1 Wages are the prevailing wage for this specialty occupation. For jobs set at Level 1 Wages, CIS is operating from the misconception that Level 1 Wages implies that the job is entry level. They’re wrong. That’s not how wage levels work. There are many factors that are taken into consideration when determining wage levels. You need to show that this is the prevailing wage for this position to meet H1B requirements. These first two issues can be addressed in one expert opinion letter.

Third, the beneficiary must clearly meet H1B educational requirements. This means the beneficiary holds the advanced degree or its equivalent in the field of the H1B job. That means if the degree is from outside of the United States, in a different field than the H1B job, or incomplete, you will need to include a credential evaluation that fills in any gaps between the beneficiary’s education and H1B education requirements. This must take into account education that took place through work experience and a close evaluation of course content and classroom contact hours involved in the degree.

At TheDegreePeople, we work with difficult RFEs every year, and we have the experts with the highest rates of success to help overturn them.

For a no-charge and no-obligation review of your case, or your employee or client’s case, simply visit ccifree.com. We will get back to you in 48 hours or less with a full analysis and pre-evaluation.

Case Study: The Triple H1B RFE – OVERTURNED! Read More »

RFE Support: Know the H-1B Job Better than CIS Does

Credential Evaluation, Immigration, Visa Approvals

H-1B filing season is over, but that doesn’t mean the work is done. Last year, CIS rolled out an unprecedented number of RFEs challenging occupational specialization.

Last year, computer programmers at level 1 wages were targeted for RFEs claiming that the job entry level computer programmer didn’t meet the H-1B specialization requirement that a candidate must hold a minimum of a US bachelor’s degree or higher or its equivalent as a requirement for entry into the position.

CIS used a passage from the US Department of Labor’s Occupational Outlook Handbook (OOH) to justify this RFE. The passage stated that some employers will hire entry level computer programmers with a US associate’s degree as a minimum requirement. Since H-1B jobs require a US bachelor’s degree or higher or its equivalent as a minimum requirement for a job to meet the H-1B definition of occupational specialization, CIS determined that entry level computer programmer was not an H-1B eligible job.

There are two main problems with this reasoning:

First, the fact that a job is set at level 1 wages does not mean it’s an entry level position. There are more factors that go into determining wage levels than just that.

Second, that same passage in the OOH also states that employers will usually require a US bachelor’s degree or its equivalent as a minimum requirement for entry into the occupation of entry level computer programmer. If it is a normal industry standard to require a minimum of a bachelor’s degree than it should meet H-1B specialization requirements, even though not all employers adhere to this general industry standard. A bachelor’s degree minimum is still an industry standard for this position, and THAT is what you need to prove to CIS to get the RFE overturned.

CIS uses the OOH to determine whether or not a job meets H-1B occupational specialization standards. However, as we learned last year, they are very selective in the wording and passages they use to justify their decisions. That means, you need to know what the OOH has to say about the job in question inside and out so you can call out CIS when they use OOH wording to justify your RFE, or your employee or client’s RFE.

If you haven’t already, familiarize yourself with what OOH has to say about your job, or your employee or client’s job and document it. You will need documentation that the advanced degree is an industry standard, or that your client’s position is uniquely complex to require an advanced degree, and that employees having this degree as a minimum requirement for the position is a consistent hiring practice of the sponsoring employer. Included in the evidence, you will also need an expert opinion letter to weigh in on why and how this job meets H-1B specialization requirements.

At TheDegreePeople.com, we have experts on hand 24/7 to review your case and write the expert opinion letter you need, or your employee or client needs to get that H-1B visa approved. For a free review of your case at no obligation, visit ccifree.com. We will get back to you in 48 hours or less with a full analysis and our recommendations.

RFE Support: Know the H-1B Job Better than CIS Does Read More »

H-1B Support: Refuting the Specialty Occupation RFE

Credential Evaluation, Immigration, Visa Approvals

Filing season for the H-1B cap has come and passed. That means this season’s first round of RFEs is on its way.

Last year, we saw a spike in Specialty Occupation RFEs that questioned whether a job qualified for H-1B eligibility. For a job to meet H-1B specialization requirements, it must fit the definition of specialty occupation according to USCIS statutes. Here is where it gets murky:

There are two very similar but profoundly different definitions of specialty occupation within the same CIS statute.

INA § 214(i)(1) defines it as, “An occupation that requires theoretical and practical application of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

INA § 214.2(h)(4)(ii) holds the same definition EXCEPT instead of stating the degree must be in THE specific specialty, it states itmust be in A specific specialty.

Employers will hire H-1B employees for positions when they have a degree that exactly matches the job, or that is related to the job in such a way that there is significant specialized knowledge and skill overlap. This still tends to be a narrow range of degree specializations. In the past, CIS has approved visas according the second definition that allowed for beneficiaries with degrees in related fields that did not exactly match the H-1B job because the job requiring that minimum credential would qualify for H-1B eligibility under that definition. In recent years, CIS has switched to the first, strict definition that requires beneficiaries have “a bachelr’s degree or higher in THE specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

However, if you, or your employee or client receieves an RFE for specialty occupation, disputing these definitions will not help you. The important part to focus on in BOTH of these definitions is: “or its equivalent.”

In the Tapis International v. INS decision, it was established that equivalent encompasses academic and experienced-based training in various combinations. This means that a job or a candidate doesn’t necessarily need a bachelor’s degree in THE specific speciality to be eligible for H-1B. There are four options, one of which must be met:

  1. The job in question normally requires a minimum of a US bachelors degree or higher for entry into the position in the United States.
  2. This minimum degree requirement is normal for this job in similar organizations in the industry.
  3. The job in question is uniquely complex to need a US bachelors degree or higher as a minimum requirement for entry into this position.
  4. The employer sponsoring the H-1B beneficiary commonly requires a this degree as a minimum for entry into the position, and this can be proven by their hiring history.

If the job meets one of these four requirements – and the beneficiary meets the educational and experiential requirements as well – the job meets H-1B eligibility requirements. However, you will need evidence to back up that the specialization of the job in question is consistent with industry standards or employer hiring practices. This requires a detailed employer support letter, but CIS will NOT just take the employer’s word for it. Your RFE response must also include an expert opinion letter to back up that the job does meet H-1B specialization requirements.

At TheDegreePeople.com we have experts on hand 24/7 to review your case and write the letter you need, or your employee or client needs to get that RFE overturned. Every year, we work with difficult H-1B RFE cases and we get them overturned virtually every time. For a no charge and no obligation review of your case, visit ccifree.com. We will get back to you in 48 hours or less with a full analysis and expert consultation on how to best proceed.

H-1B Support: Refuting the Specialty Occupation RFE Read More »

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