immigration law

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.  ]]>

Overturn an H1B Nightmare RFE in Three Steps

  • Read it.
  • Sit down with your team and read through the entire RFE carefully. Look at the documentation and evidence that you are being asked to provide. Don’t panic, you won’t have to provide the virtually impossible amount of evidence in the virtually impossible amount of time the RFE states.
    1. Put it down and go back to the original H1B requirements.
    This RFE will not tell you how to answer it. The second step is to put the RFE down and return to the initial H1B requirements. In looking at the original H1B requirements in light of the evidence and documentation being requested, you can get a sense of what underlying questions CIS is really trying to answer in requesting the evidence indicated. Answer those underlying questions and you won’t need to jump through the impossible amount of hoops the Nightmare seems to require. Remember, the candidate’s job must be a specialty occupation requiring a US bachelor’s degree or higher or its foreign equivalent to perform. The candidate must hold that degree in the exact field of employ or its foreign equivalent. Your client’s employer must be economically viable and pay the H1B worker the prevailing wages for that job for a company of that size in that geographical location. The candidate and the employer must also have an employer-employee relationship in which the employer can hire, fire, promote, pay, supervise, and otherwise control the candidate’s work. Find out which of these requirements were not clearly met, and provide the evidence to fill in the gaps left open in the initial petition.
    1. Go to CCIFREE.COM for a free consultation on how to best proceed.
    Visit us for a free consultation on your education situation, or the situation of your employee or client. Oftentimes, what was missing in the original petition was a credential evaluation – or the RIGHT credential evaluation. If you or your employee or client has a degree from outside of the United States, incomplete college, or a degree in a generalized field or field that does not exactly match the H1B job, a credential evaluation is needed so CIS can clearly see the value of the education. Oftentimes, a credential evaluation agency will write an accurate evaluation, but not take the nuances of the H1B visa into account. If you’re wondering why you, or your employee or client got an RFE even though you submitted a credential evaluation, this may be your situation. Did the agency ask about the job or visa? These are two essential components of writing the RIGHT credential evaluation for the H1B visa. Are you staring down a Nightmare RFE? We can help. Simply go to ccifree.com and submit the candidate’s educational documents and a current, accurate resume and we will get back to you within 24 hours with a full pre-evaluation and analysis, and all of your options moving forward. About the Author Sheila Danzig Sheila Danzig is the Executive Director of TheDegreePeople.com a Foreign Credentials Evaluation Agency. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/ or call 800.771.4723.  ]]>

    The Answer to Your EB2 RFE is NOT in the RFE!

    Do you, or does your employee or client meet the educational criteria of the visa? First and foremost, make sure that the beneficiary’s education meets the educational criteria for the particular visa preference classification. For example, and EB2 visa requires beneficiaries to hold a US Master’s degree or higher or its foreign equivalent, or a US bachelor’s degree or its equivalent FOLLOWED BY five years of progressive work experience in the field. If you or your employee or client does not meet these requirements, or cannot meet them with a detailed credential evaluation, you are petitioning for the wrong visa. However, many candidates who do not immediately meet these criteria actually do with the proper credential evaluation. This brings us to the second educational requirement for I-140 visas: The Bachelor’s Degree must be a single source. This means, unlike other visas such as the H1B, your client cannot combine work experience with years of college credit to write a bachelor’s degree equivalency. It must be a single source. This can become troublesome if you or your employee or client holds a three-year bachelor’s degree from a country outside of the United States because that missing fourth year is going to be a problem. However, years of progressive work experience in the field can in many cases be evaluated to be the equivalency of a US Master’s degree in the field, accompanied by the proper evidentiary support, documentations, and citations. The Education and Job Must Meet Visa Criteria It is tempting for candidates with EB3 qualified education to try for EB2 preference. This is because the wait time for visas being processed is years shorter for EB2 candidates than for those of EB3 education. Do NOT be tempted into petitioning for a visa that is not right for your client. EB2 candidates must hold a US Master’s degree or higher or its foreign equivalent, OR a US bachelor’s degree or its foreign equivalent FOLLOWED BY five years of progressive work experience in the field. These requirements are extremely specific, but also very clearly spelled out. If you are unsure about your client’s education, talk to a credential evaluator who often works with I-140 cases and their RFEs. In the same way, some jobs simply don’t meet the specialization requirements of EB2 or EB1. These visas require highly specialized jobs with advanced degrees and work experience necessary to perform. If you or your client or employee does not hold a job that fits these requirements, you may be chasing the wrong visa. USCIS defines progressive work experience in the field as “demonstrated by advancing levels of responsibility and knowledge in the specialty.” This means that the candidate must have clearly learned skills and knowledge essential to the industry through this work experience, and instead of passing a test or getting a grade, this progress is evidenced through promotions and increased responsibility. Progressive work experience comes in handy candidates don’t have the number of years necessary in their foreign bachelor’s degree to make a single source US equivalence, and also when they run into the next RFE-triggering problem. The Degree MUST Match the Job Offer If your education, or your employee or client’s education doesn’t match the job offer on the PERM, you will receive an RFE. This is because candidates need to have the specialized skills and knowledge necessary to perform their job, and a degree in a different field does not assure CIS that they meet minimum requirements to perform their job. Employers will often hire employees with degrees in related fields that are not an exact match because they know there is enough information overlap, but CIS will question their qualifications with an RFE. If your degree, or your employee or client’s degree does not match the job offer, progressive work experience in the field can be converted into the necessary degree specialization. For example, say you or your employee or client has a job in computer sciences but a Master’s degree in engineering. The beneficiary also has five years of progressive work experience in the field of computer sciences. A credential evaluator with the authority to make this conversion can write the equivalent of five years of POST-BACHELOR’S DEGREE work experience in the field of computer sciences to a US Master’s degree in computer sciences. If you or your employee or client received an RFE, read it over carefully, but don’t get lost in it. Instead, sit down with your team and understand which of the ORIGINAL VISA CRITERIA are in question. Find out what evidence you need to provide to meet the ORIGINAL VISA CRITERIA that are in question and submit that documentation in your answer. The roadmap to answering the RFE is NOT in the RFE, so look to the original visa criteria and make sure that you’re not leaving any open gaps or failing to meet any requirements. About the Author Sheila Danzig Sheila Danzig is the Executive Director at TheDegreePeople.com, a Foreign Credentials Evaluation Agency. For a free analysis of any difficult case, RFE, Denial, or NOID, please go to http://ccifree.com/ or call 800.771.4723.    ]]>

    How to Find the Right Credential Evaluator for an H-1B RFE

  • Do they offer a free review of the case?
  • An evaluator cannot know what services must be provided – or whether or not your education, or your employee or client’s education and work experience will even work for the H-1B visa at all – without reviewing your employment history, or your employee or client’s employment history and educational documents. You received an education RFE. Before you answer it, make sure you CAN answer it successfully with what you, or your employee or client has to work with, and what needs to be done to write the equivalency that will accurately meet H-1B education standards. If an agency or evaluator asks for payment before looking into what needs to be done, look elsewhere.
    1. Are they easy to work with?
    The evaluator who you want to work with is one who wants to work with you. Answering an RFE means you have to collect a lot of documentation – some not so easy to secure – in a short amount of time. Don’t waste your time working with an evaluator who doesn’t answer your calls, your text, your emails, or your questions to your satisfaction. Being easy to work with also means they are affordable and offer rush delivery options. When it comes to credential evaluation agencies, you don’t “get what you pay for.” The best ones tend to be inexpensive.
    1. Did they ask about the visa?
    A common cause of an education RFE is that the evaluator wrote the right evaluation for the wrong visa. Many evaluation agencies will write a standard evaluation of your credentials, or your employee or client’s credentials without regard for the particular, unique educational requirements for the H-1B visa. Educational requirements, as well as approval trends and standards surrounding what education and work experience can be combined to write an equivalency vary from visa to visa. For example, an H-1B beneficiary may combine work experience and college credit to write an acceptable equivalency to a US bachelor’s degree. Meanwhile, an EB2 beneficiary who tries to do the same thing will fail because for that particular visa the bachelor’s degree must be a single source. The evaluation must lend itself to the visa in question to be successful.
    1. Did they ask about the job offer?
    Just like the particular visa requirements, the evaluation must also lend itself to the client’s job offer. In the past, CIS has accepted petitions in which the beneficiary holds a degree in a field related to the job offer. This is not the case anymore. Now CIS requires beneficiaries to have a degree in their exact field of employ. This is because H-1B visas are for beneficiaries working specialized occupations, with knowledge and skills specialized to their field. While an employer will look at a candidate’s education and work experience and see that they have the skills and knowledge necessary to work their job, if the degree is not in the field, CIS will require more evidence. If your credential evaluator doesn’t ask about your job, or your employee or client’s job, he or she does not understand this and you need to look elsewhere. If your degree, or your employee or client’s degree is in a mismatched field, a credential evaluator with the authority to convert progressive work experience in the field into college credit in that specialization is exactly who you need to be working with.
    1. Do the often work with RFEs, Denials, and NOIDs?
    The credential evaluator you want is one who does not shy away from difficult cases. You, or your employee or client received an RFE, so you want to work with an evaluation agency with extensive experience answering them. It’s important to keep in mind that the roadmap to answering the RFE is NOT IN THE RFE ITSELF. Especially with RFEs like the Nightmare – which is virtually impossible to answer if you follow its instructions – guidance from those who know the terrain and can navigate it successfully is essential to success. Evaluators that work with these kinds of cases know what CIS is looking for in the documentation they request, know what triggers and RFE, and what works and what does not in answering it. These evaluators follow CIS approval trends, which change from year to year. About the Author Sheila Danzig Sheila Danzig is the Executive Director of TheDegreePeople.com a Foreign Credentials Evaluation Agency. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/ or call 800.771.4723.    ]]>

    Building Your Immigration Practice: Should You Write a Book?

  • Do I REALLY want to put myself and my ideas out there for all to see? This means taking a public stand and being held accountable to the words you write. You will never be able to please everyone, and you won’t be able to sit down with everyone who reads your book and explain yourself. However, if you invite your readers to get in touch with you with any questions they may have regarding what you’ve written, you’ve taken a massive step towards building your business.
    1. Do I have a book concept that REALLY inspires me? Ask yourself, is there anything you know enough about that will drive you to set aside time to work on your book even when you’re busy? Is this concept so compelling to you that you are willing to make it a central focus of your law practice for the next few years? Are you inspired by the topic to the extent that you are willing to pass up short-term opportunities to focus on the long-term goal of getting your book out there? Writing a book is a process, and if you’re not inspired by the concept you won’t have the energy to complete this process.
    1. Do you REALLY want to be a writer? When you commit to writing a book, you commit to being an author. This means doing things that authors do like giving talks and webinars, maintaining a blog, publishing articles, and, of course, actually writing your book. However, you don’t technically have to be a writer to be an author. If you have all of the expertise and information but writing isn’t really your passion or practice, you can hire a ghostwriter to help you.
    If you are committed to putting your ideas out there, have a topic you are passionate and inspired by, and you want to be a writer (or at least hire one to help you), then the answer is YES! You should absolutely write a book. Being a published author will build your business and launch your career to new levels of success. Now that you’ve decided to write a book, the next step is to write, right? Wrong. The next step is the step that will give you that initial bump in business growth, and here’s why. When you approach a publisher with your non-fiction book concept, your publisher already knows that in today’s market a non-fiction book on average sells less than 250 copies each year, and less than 2,000 copies in its lifetime. One thing you cannot count on your publishing company to do is to help you market your book. This is something that now falls mostly on the author. That means even if your content is amazing, it’s very unlikely the publishing company will profit much from it. That’s why when you pitch your story, you need to show two things:
    1. You have an audience ready to buy your book.
    2. You have a marketing plan to promote your book when it comes out.
    Even if you decide to self-publish, these are the first two things you need to be thinking about. Fortunately, these are also the first two things you need to be thinking about to build your business. Even if you don’t end up writing a book, preparing to write a book will build your business in ways you would have otherwise missed out on. To build your audience, you need to show that your ideas are compelling, unique, and helpful to the people affected by your law practice and your book concept. Write articles on the topic of your book. Maintain a blog with many of your postings focusing on the concept of your book. Blog about your writing process and include excerpts of what you’ve written. Give talks and host webinars on the topic of your book and your law practice. You can even attend conferences regarding your book topic, including writer’s conferences where you can glean ideas about how to best get your book out there. These are great opportunities to network with journals and other publications to get your articles published in. If you are not already taking these steps to build your business, you should be doing them anyway. Writing a book has short-term and long-term benefits for business growth. Making a commitment to your concept and your book gives your business marketing strategy focus and momentum. Then, getting your book published and out there opens up even more doors for you and your law practice. You can learn exactly what to do to build your audience base, devise an effective marketing strategy for your book, and write the non-fiction book that will skyrocket your practice to new levels of success in my book Invisible Marketing for Attorneys. You can download this book for free at www.ccifree.com from the link on the left side of the page. This is also the website to visit for a free review of any H1B, E3, TN, or I-140 case. About the Author Sheila Danzig Sheila Danzig is the Executive Director of TheDegreePeople, a foreign credentials evaluation agency. For a no-charge analysis of any difficult case, RFE, Denial, or NOID, please go to http://www.ccifree.com/ or call 800.771.4723.]]>

    The Matter of Shah and Why it Should NOT Matter

    did in fact major in chemistry in the Matter of Shah. Even though the board did not recognize the value of the candidate’s undergraduate degree, the University of Detroit certainly did.  In fact, the university admitted the candidate into their MBA program based on the three-year Indian bachelor’s degree being the equivalent of the US four-year bachelor’s degree necessary to gain entrance into that very program.  The fact that the candidate went on to successfully complete the two-year MBA program goes to show that the Indian three-year degree with chemistry as a special subject really did qualify the candidate for the graduate program. Finally, the last reason I will go into for why the Matter of Shah should not be grounds for denying anyone’s visa is that in making the decision, the board overturned a previous ruling.  This ruling was made by the United States Department of Health, Education, and Welfare, and can be found in Appendix 5-F, pages 34-37 of the Immigrant Inspector’s Handbook.  In this ruling, the department stated that a B.S. degree in chemistry from the candidate’s university, Gujarat University, is the equivalent of a United States B.S. degree. The Matter of Shah has its foundation in four errors:

    1. Incomplete evaluation of the academic content of the candidate’s degree.
    2. Failing to translate the term “Special” into US academic context.
    3. Ignoring the University of Detroit’s decision to admit the candidate into their graduate program based on the academic value of the candidate’s three-year Indian bachelor’s degree, as well as the candidate’s successful completion of the MBA.
    4. Overturning a previous ruling that determined that the candidate’s exact degree was the equivalent of a US four-year bachelor’s degree.
    The Matter of Shah should not serve as a roadblock to Visa approval.  Unfortunately, almost forty years later, it still does.  If your client or employee received an RFE about their three-year bachelor’s degree, you need to provide a credential evaluation that includes a refutation of the Matter of Shah.  As you can see, refuting the Matter of Shah as grounds for a decision about the value of a three-year Indian bachelor’s degree or specialization is not difficult to do in a credential evaluation.  However, the evaluator you select must be well versed in USCIS and immigration precedents, and be able to provide the documentation that highlights these points of refutation. About the Author  Sheila Danzig Sheila Danzig is the Executive Director of CCI TheDegreePeople.com a Foreign Credentials Evaluation Agency.  For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/ or call 800.771.4723.]]>

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