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specialty occupation rfe

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.

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Specialty Occupation RFE: How to Prevent the Toughest RFE of Last Season

Credential Evaluation, Immigration, Visa Approvals

This RFE not only serves as a warning for computer programmers at level 1 wages coming up on this next H1B filing season, but also for all beneficiaries in borderline occupations, or in jobs that could be mistaken for borderline occupations. These jobs, like entry level computer programmers, don’t necessarily require a US bachelors degree as a minimum according to the US Department of Labor’s Occupational Outlook Handbook.

To prove specialization, you will need to include a detailed job description and evidence to back up the claim that the job meets CIS specialization requirements. You will need to provide the ad for the job that shows a minimum requirement of a US bachelors degree or higher, and you will need evidence that shows that this position in that industry at similar companies also holds this minimum educational requirement. If the job in question is uniquely specialized as to require an advanced degree where similar positions in the industry do not, you will need to clearly show why this is the case and include an expert opinion letter to back up your claim.

Last year, CIS issued RFEs claiming that because entry level computer programmers are sometimes hired with only a US associate’s degree, the job doesn’t meet CIS specialization requirements. There were two problems here: First, the evidence CIS used to support this claim is a passage in the Occupational Outlook Handbook that states sometimes employers will hire entry level programmers with only an associates, but that same passage also states that this is not the norm, and the position typically requires a minimum of a bachelors degree. Second, just because a job is set at level 1 wages doesn’t mean it’s an entry level position, and that also doesn’t mean the beneficiary isn’t being paid the prevailing wage for that position. There are many factors to be taken into consideration when determining wage levels.

If you or your client or employee is a computer programmer working at level 1 wages, you will need to include an expert opinion letter to prevent an RFE. We have experts on hand 24 hours a day 7 days a week to write the letter you or your client or employee needs to prevent a specialty occupation RFE. For a no charge and no obligation review of your case, or your employee or client’s case, visit ccifree.com.

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Prepare for Tough RFEs for Specialty Occupation this H1B Season

Credential Evaluation, Immigration, Visa Approvals

Last year, we saw an unprecedented expansion in RFEs for Specialty Occupation, hitting H1B candidates in computer programmer positions at level 1 wages the hardest. This year, we expect these RFEs to continue to be even tougher and more widespread.

That means, if you, or your client or employee has a “borderline” job – meaning these jobs don’t necessarily require a US bachelor’s degree or its equivalent according to the US Department of Labor’s Occupational Outlook Handbook (OOH) – or if your job, or your employee or client’s job can be misconstrued as a borderline job, you will need to go a step farther to prove that the job is specialized to meet H1B requirements. You also need to be extra careful to keep answers and information on all documents involved in the petition process consistent.

Here are some problems you may run into this H1B season when it comes to occupational specialization:

1. Job description in the LCA doesn’t exactly match the job description on the H1B petition.

This is very common, as most actual job descriptions are not a 100% match for the description of the occupation in the OOH. However, employers must choose a job on the LCA that is outlined in the OOH, and if there are any inconsistencies, CIS can use that for grounds to issue an RFE.

2. Job title in the LCA doesn’t match the job title on the H1B petition.

Last year, we saw an unprecedented number of RFEs with regards to Level 1 Wages for the job of computer programmer. CIS used a passage in the OOH that states employers sometimes hire entry level computer programmers with only a US Associates degree, which doesn’t meet the H1B educational requirement of a US Bachelors degree or higher. To avoid this RFE, employers may be tempted to select a different job title that doesn’t tend to attract so many RFEs in the LCA. If you decide to do this, make sure the job title on the LCA matches the job title on the H1B petition and is a good match for the job description.

3. The wage level stated in the OOH does not match the wages the H1B worker makes.

H1B workers must be paid the prevailing wage for similar jobs in that industry for companies of that size in that geographic region. If the wages you or your employee or client is making doesn’t match those indicated in the OOH, you need to explain why this is the case in the petition to avoid an RFE.

Last year, a big misunderstanding of how wage levels work caused computer programmers making level 1 wages to deal with a slew of difficult RFEs. CIS assumed that just because a job is set at level 1 wages means it’s an entry level position. There are many reasons an employee may start at level 1 wages, even if the job is not entry level. For example, recent college graduates entering the workforce with Bachelors degrees but little to no work experience need a high level of guidance, training, and supervision. Company resources are allocated to these needs as the employee starts, justifying the low starting wage. This needs to be explained in an expert opinion letter, along with a detailed job description and employer support letter.

If you or your client or employee has a borderline occupation or works as a computer programmer, visit us at ccifree.com or simply reply to this email for a no cost and no obligation full review of your case, or your client or employee’s case. At TheDegreePeople.com, we work with RFEs every year. We know what triggers them, and we know how to answer them, and most importantly, we know how to prevent them. We will review the entire case, and get back to you within 48 hours with a full analysis, pre-evaluation, and our recommendations moving forward.

Prepare for Tough RFEs for Specialty Occupation this H1B Season Read More »

Overturning the RFE for Specialty Occupation

Credential Evaluation, Immigration

It’s RFE season and CIS is coming down especially hard on “borderline” occupations this year.

These are jobs that don’t necessarily require a US bachelor’s degree or its equivalent or higher according the the US Department of Labor’s Occupational Outlook Handbook (OOH). Some borderline jobs include management positions, certain computer and tech positions, certain healthcare occupations, and other jobs that vary in specialization based on the individual circumstances of the unique job itself.

When an employer fills out the Labor Conditions Application, they must choose the employee’s occupation from the OOH. This selection is used by CIS to determine the prevailing wage the H1B employee must be paid. Employers of H1B candidates with borderline jobs can choose a job from the OOH that emphasizes a central aspect of the occupation that requires a US bachelor’s degree or its equivalency or higher. This is where three problems arise that result in some very serious RFEs:

First, most jobs don’t meet the duties and responsibilities outlined in occupations in the OOH 100%. This is a vulnerability CIS takes advantage of to issue an RFE.

Second, when employers do this, the job on the petition does not match the job on the LCA.

Third, the wages employers are paying their H1B workers is called into question because the wages being paid to the H1B worker is not the same as the wage level as stated for the occupation in the OOH.

These are very serious RFEs.

Does this mean employees with borderline occupations are out of luck this RFE season? No, but it requires answering the RFE with a lot of evidence, documentation, citations, and analysis. The goal is either to prove that this particular occupation is uniquely specialized as to require an advanced degree, or that the candidate’s degree equivalency meets the educational requirements stated for the OOH job indicated on the LCA.

Don’t try to answer this RFE alone. This is not something you can do without help from experts in international education, the details of H1B educational requirements, and CIS approval trends, and is familiar with the various OOH/ONET positions and their requirements. While there are no guarantees with CIS, at TheDegreePeople.com, our experts have been able to overturn these RFEs with a 100% success rate. Visit ccifree.com and let us help you solve your RFE dilemma.

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