H1B visa

Case Study: RFE for Wrong Degree Specialization Overturned!

Case Study: RFE for Wrong Degree Specialization Overturned!

USCIS and employers have a different idea of what qualified an H-1B employee for their specialty occupation.  It is commonplace for employers to hire a candidate with a degree in a field related to the position, given they have proper work experience to master the specialized skills and knowledge necessary to perform it.

It has been years since USCIS has regularly approved H-1B cases in which a beneficiary has the required US Bachelor’s degree in a field RELATED to the specialty occupation.  USCIS will not outright approve an H-1B visa unless the beneficiary has a degree in the exact specialization of the occupation, or a detailed credential evaluation that explains how their educational and field experience background makes the equivalent of the correct degree specialization.

Every year, we have clients come to us in this situation.  The way we overturn these RFEs is to write a detailed evaluation that analyzes the course content of the degree earned to highlight college credit hours earned in the exact field of the H-1B job.  Then, we take progressive work experience into account to bridge the gap between the beneficiary’s education specialization and the field of the H-1B job.  Three years of progressive work experience in the field of the H-1B job in which the beneficiary can prove they took on progressively more responsibility and the nature of their duties and tasks became increasingly complex and specialized can be converted into one year of college credit in the field of the H-1B job.  This conversion must be written by a professor with the authority to grant college credit for work experience.

At TheDegreePeople.com, we work with professors in all fields to write the work experience conversion for the credential evaluation you or your employee or client needs to get that RFE overturned.  There are no cookie cutter solutions to H-1B RFEs because every case is different.  Every job is different, and every educational pathway is different, especially when it comes to highly skilled individuals.  All evaluations are uniquely researched and written with regards to your, or your employee or client’s education, job, work experience, and visa. 

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

Common H-1B Issues to Anticipate this Adjudication Season

Common H-1B Issues to Anticipate this Adjudication Season

In the next few months, H-1B petitioners and beneficiaries will find out if their petitions have been selected in the lottery, and accepted for approval.

We predict this year will follow the trend of the previous few years with an increase in H-1B issues that block beneficiaries from outright approval. What is unclear is whether beneficiaries will be receiving RFEs or Denials in response to these issues. Last year, adjudicators were given the authority and encouragement to deny petitions outright without offering an RFE as an opportunity to respond questionable cases. This was announced in a USCIS memorandum along with several other changes to the H-1B selection and adjudication process, some of which went into effect this lottery season, and some of which did not.

One thing is certain: preparation is key. It is FAR from impossible to overturn a Denial. You just need to stay one step ahead of the game. That means understanding what about your case may raise red flags, and that means going back to the basic H-1B eligibility requirements and taking an honest look at where your case may fall short.

Employer-Employee Relationship

Small businesses often run into trouble here if they cannot clearly show in the LCA that they can afford to pay the prevailing wage to the H-1B worker and maintain economic viability. Another big issue is when the beneficiary is an owner, founder or co-founder, or sole proprietor of the business. H-1B workers must have their work, wage, and employment status controlled by an employer to meet this requirement and beneficiaries cannot self-petition for this visa. If this is the situation, there must be a CEO or board of directors different from the H-1B worker that fills this role to prove an employer-employee relationship exists in the arrangement.

Wage Level

The H-1B employee must make the prevailing wages for the position. Factors that influence the prevailing wage include industry standards, company size, geographic location, and more. Workers making level one wages often run into issues. In a response to an RFE or Denial, you must articulate all of the factors that went in to setting the wage level and an expert opinion letter that assures the prevailing wage requirement has been met.

Specialty Occupation

For the last two H-1B seasons, this RFE has spiked in prevalence and is often linked with wage level issues. If you, or your employee or client’s job sometimes requires a US bachelor’s degree or higher, but not always, or if this job is particularly specialized, you need to take extra steps to meet this requirement. That means providing a detailed breakdown of the duties and tasks of the job, as well as the advanced knowledge, skills, and understanding that must be applied every day in this position. You will also need to show that a US bachelor’s degree or higher is a typical minimum requirement for this job as either an industry standard, or as a company standard as evidenced in the ad for the job and in past hiring practices. An expert opinion letter must also be included to lend validity to and analysis of the documentation provided by your team.

Educational Requirements

H-1B requires the beneficiary have a US bachelor’s degree or higher or its equivalent. Foreign degrees that are not accompanied by the right credential evaluation raise red flags, especially the Indian three-year bachelor’s degree. The right credential evaluation takes the H-1B job into consideration and makes the necessary work experience conversions and detailed course breakdowns necessary to fill in any gaps between the job and the degree as the degree must be in the exact field of the H-1B job to address the demands of a specialty occupation. Incomplete college or no college experience must be compensated for with work experience conversion that must be written by a professor with the authority to convert work experience into college credit.

Any situation out of the ordinary or that is not completely straightforward can raise a red flag, which in turn triggers and RFE or Denial. At TheDegreePeople.com we work with RFE and Denial cases every year. We know what to look for and we know how to successfully address it. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.

H1B 2019 Post-Memorandum: Who Caused that RFE?

Sometimes it’s no one’s fault, and sometimes it’s fault of USCIS.When working with any bureaucratic process, there is the possibility of error.  When working with USCIS, there is the understanding that processing errors occur, and that their approval trends are volatile and can be unpredictable.  It can be difficult to anticipate which parts of the law they will interpret which way from year to year.  If approval issues arise due to bureaucratic or human error, there will likely be a way to address it.  A Denial is not the end of the road, it is just harder to overturn than an RFE.  If it is no one’s fault, or if USCIS pulls a fast one on us again, we can find a way to work around it.Sometimes the lawyer caused the RFE.Occasionally, an immigration attorney will file the wrong document, or file the petition wrong.  While this is rare, it can cost an outright approval.  To prevent this, legal assistants are encouraged to check in with TheDegreePeople.com to make sure that they have all of the necessary immigration forms, labor forms, and documentation necessary to file everything on time, in the right order, and filled out appropriately.Sometimes the beneficiary caused the RFE.It is not uncommon for a beneficiary to misunderstand the US academic equivalency of their education.  Sometimes a bachelor’s degree in one country is not a bachelor’s degree in the United States because even though the words translate the educational value does not.  Some certifications and professional licenses in some countries are the equivalent of a US bachelor’s degree in that field, while the US license or certification is not.  Sometimes a beneficiary will have a degree from an unaccredited academic institution, or even from a degree mill.  It is important for beneficiaries to understand their education, and what it means in terms of US value, and to make sure that their school is accredited.  If the beneficiary does not have the necessary education, it is their responsibility to make sure they have enough education and work experience to make up the equivalency.Sometimes it’s the employer or the job that caused the RFE.If the Labor Condition Application (LCA) is filled out incorrectly or misfiled, if there are discrepancies between the job description and the entry on the LCA, if USCIS feels that the wage level was set incorrectly or that the job does not meet specialty occupation requirements, issues will likely arise in the approval process.  It is recommended that all petitions now include an expert opinion letter clarifying that the job meets H1B specialty occupation requirements and explaining why the wage level is set as it is to meet H1B requirements.Before you file, let us review your case to make sure all your bases are covered.  It is more important this year than ever before to get it right the first time, because you may not get a second chance.  For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less. ]]>

Visa Adjudication Memorandum Support Part I: Expert Opinion Letters for Issues We Can Help You With

Specialty Occupation LetterSome reasons you, or your employee or client will need a specialty occupation letter have to do with wage level issues, which has been a common problem for the past two H1B seasons.  If the wage level is low, or if the low wage level indicates that the job is an entry-level position, you will need an expert opinion letter that explains how the job meets H1B specialty occupation requirements and why the wage level was selected.  Another issues that would require a specialty occupation letter to explain is the issue of what education level is typically required as a minimum to perform the job.  Could someone else with less education perform the same job?  For H1B visa approval the answer MUST be a resounding no, and this specialty occupation letter must explain why.Specialized Knowledge LetterTo meet H1B requirements, it must be clearly shown that the beneficiary holds the specialized knowledge required to work the specialty occupation position.  If the beneficiary holds a generalized degree, incomplete college, or a degree in a different field than the position, you will need a specialized knowledge letter to show that the job requires the employee to have specialized knowledge, and that the employee has the specialized knowledge necessary.  This means specialized knowledge of the employer’s services, products, equipment, processes and procedures.Credential EvaluationsIf you, or if your employee or client has a degree from outside of the United States, a degree in a field that does not exactly match the H1B job, or incomplete or no college at all, you will need to include a credential evaluation to show that your education, or your employee or client’s education – inside and outside of the classroom – is the equivalent US academic value of what is required to meet H1B education standards.  To qualify for H1B status, the beneficiary must hold a US bachelor’s degree or higher in the field of the specialty occupation.  If you, or your employee or client holds ANYTHING BUT a US bachelor’s degree (or higher if required by the specialty occupation) in the exact field of the specialty occupation, you will need to include a credential evaluation letter to clearly show CIS that H1B educational requirements are met.Work Experience EvaluationsIf the beneficiary has incomplete college, no college, or needs extra credits to meet US academic value requirements from an overseas degree, or if the degree is in a generalized or mismatched specialization, you will need to include a work experience evaluation.  Three years of progressive work experience in the field of the specialty occupation can be evaluated to be the equivalent of one year of college credit in that field.  Progressive work experience means that the nature of the work became increasingly complex with the beneficiary taking on more responsibility as the course of the employment went on, indicating that education took place on the job.If your case, or if your employee or client’s case includes one or more of these triggering situations, or if you are unsure of whether issues are likely to arise, visit ccifree.com/ for a free review of your case.  We will identify issues likely to arise in the adjudication process and recommendations on how to prevent them in the initial petition.Watch out for Part II next week where we will discuss expert opinion letters needed for Education-Based Green Card petitions. ]]>

Round 2: What to do if the 2nd RFE Arrives After Resolving the First RFE

If the petition process and first round of H1B RFEs aren’t stressful enough here comes round two of RFEs.  When CIS finds something wrong with a petition, it opens the floodgates to finding more details out of place that would have otherwise gone unnoticed.  The best way to prevent round two of RFEs is to prevent round one by identifying the common RFE triggers inherent to the situation in your case and plan accordingly, but this doesn’t always work.If you or your employee or client is facing down RFE round two, don’t panic.  The petition has not been denied, CIS just needs more information to make a decision.The trick with any RFE is not to get caught up in the wording or individual demands, but rather to go back to the basics and see where evidence and analysis is lacking.  To qualify for H1B status, the job must be a specialty occupation, which means as an industry standard or a standard hiring practice a minimum of a US bachelor’s degree or higher in the specialization is required for entry into the occupation.  The beneficiary must hold a US bachelor’s degree or higher or its acceptable equivalency in the exact field of the specialty occupation.  The employer must be economically viable and pay the beneficiary the prevailing wages and benefits for the specialty occupation, and there must be an employer-employee relationship in which the employer can hire, fire, promote, supervise and otherwise control the work the beneficiary does.Read the RFE and identify which of these requirements CIS is having trouble adjudicating.  Is it the job?  Is it the education?  Is it the working conditions?  At TheDegreePeople we work with difficult RFEs every year and we know how to identify where cases are lacking in evidence and analysis, and which common RFE traps beneficiaries fall into as CIS approval trends change from year to year.  Let us review your case for free before you answer that second round of RFEs.  Visit ccifree.com and we will get back to you in 48 hours or less.]]>

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