US immigration

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.  ]]>

H1B Changes in Adjudication Means Getting the Initial Filing Correct

If you, or if your client or employee is planning to file for H1-B status for FY2020, the process has changed.  This coming season, you will still file the first week of April as always.  The good news is no paperwork must be submitted until AFTER your employee or client is selected in the H-1B lottery. The troubling news is that CIS will now be denying petitions outright without issuing RFEs. Denials are much more difficult to overturn than RFEs.  This change has lawyers talking about submitting the specialty occupation expert opinion letter right away with the rest of the paperwork to avoid an RFE that won’t come anymore. While every year at TheDegreePeople we urge H1-B hopefuls and their teams that the best answer to an RFE is to avoid it in the first place.  This coming season it’s more important than ever to identify where your employee or client’s case is likely to run into trouble and include any additional evidence and documentation in the initial petition. The past two years, the rate of specialty occupation RFEs has made a sharp rise.  If you hold, or if your employee or client holds a job that does not require a US Bachelor’s degree or its equivalent or higher in all cases as an industry standard, you need to include an expert opinion letter that clearly shows why the job in question meets H1-B standards for what qualifies as a specialty occupation.  Don’t take any chances this year.  If you are selected, or if your employee or client is selected in the H-1B lottery, you need to include any credential evaluations, supporting evidence, and expert opinion letters needed in the first paperwork filing because you will not get a second chance anymore.  At TheDegreePeople we have experts on hand 24/7 to write the letter you need, or your employee or client needs to get that H1-B petition approved.  We work with difficult RFEs every year and we know what tends to trigger an RFE and how to prevent them.  Don’t file without a specialty occupation letter.  Visit ccifree.com/ for a free consultation on your case, or your employee or client’s case.  We will get back to you in 48 hours or less.  ]]>

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.]]>

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

Sometimes it’s the employer’s fault.If the job indicated by the employer on the LCA does not match the position on the H1B petition, or if the job indicated on the LCA is in the “other” category, or doesn’t match the duties of the actual position, or if the wage level set does not clearly meet the prevailing wage for the job, that means the employer is at fault. Consistent answers across forms is essential. If the job in question differs from the duties and responsibilities, or differs from the wage level indicated in the entry for the position in the Occupational Outlook Handbook, the petition needs to clearly explain how these differences fit within the requirements of H1B visa status. Sometimes it’s the beneficiary’s fault.Sometimes beneficiaries don’t actually have the correct degree for the H1B job. Sometimes mistranslated educational documents, diplomas that are mistaken for degrees, and other issues that arise my virtue of hiring across cultures and educational structures hinder the approval process. Sometimes it’s the evaluator’s fault.If you or your employee or client has education from outside of the United States or a degree that is not an exact match for the H1B job, a credential evaluation is needed to fill in the gaps with a close evaluation of the course content and work experience with regards to the job in question, and specific H1B eligibility requirements. If the credential evaluator relied on online databases like EDGE to write the evaluation, or if the credential evaluator did not ask about the job or the visa, chances are the evaluation did not address all of the questions CIS must answer to approve the visa. Sometimes it’s no one’s fault. CIS approval trends change every year, which makes it difficult to predict what they will hone in on next. Sometimes mistakes are made on the bureaucratic end and you receive an RFE for evidence clearly provided in the initial H1B petition. If this is the case, you still have to answer it. It’s important to note that finding out who dropped the ball doesn’t have to be about pointing fingers or condemning a member of the H1B team. The key here is to find out how to solve the problem of the RFE and get it overturned. At TheDegreePeople we work with difficult RFEs every year, and we always find creative solutions to even the most complex and convoluted RFEs. Let us help you. For a free review of your case, or your employee or client’s case, visit ccifree.com.. We will get back to you in 48 hours or less.]]>

3 Tips to Answering the Double Specialty Occupation and Wage Level H1B RFE

  • The job in question must require a US bachelor’s degree or higher or its equivalent to meet specialization requirements.
  • The employer must pay the H1B employee the prevailing wage for that position, in that industry, in that geographical location for companies of that size.
  • This double RFE occurs when CIS believes a wage level is set too low for the job in question. Then, it goes a step further, reasoning that if the wage level is set below the prevailing wage, the job must not actually be as specialized as it needs to be for visa approval. For example, computer programmers making level 1 wages ran into trouble last year because the US Department of Labor’s Occupational Outlook Handbook states entry level computer programmers are sometimes hired with only a US associate’s degree. They reasoned that because of this, the job computer programmer at level 1 wages did not meet the H1B specialization requirement of needing a US bachelor’s degree or higher or its equivalent as a minimum for entry into the position. Either that, or the wage level is set too low. While this job in particular was the target of an unprecedented number of double RFEs last year, it wasn’t the only position called into question using this justification. There are two problems with CIS’ reasoning with this RFE.
    1. If most employers require a minimum of a US bachelor’s degree or its equivalent for entry into the position, this ought to be seen as an industry standard even though some employers don’t have this hiring practice.
    2. There are many factors that go into determining the wage level of a job. The fact that a job is set at level 1 wages doesn’t mean it’s necessarily an entry level position.
    How can you answer the Specialty Occupation and Wage Level Double RFE?
    1. Avoid it in the first place. If a job can be set at a higher wage level that better fits the position in the Occupational Outlook Handbook that meets H1B requirements, go with that. It’s also a good idea to provide extra documentation explaining the duties of the job, the level of supervision and training required, and the factors that went into determining the wage level.
    2. Include an expert opinion letter in your RFE response.Your additional evidence needs to include an expert opinion letter that explains why the wage level and the job meet H1B requirements to strengthen your case, give it more legitimacy, and clearly explain to CIS what’s really going on.
    3. Just ONE letter to cover both issues.You only need to order one expert opinion letter to answer this RFE, even though there are two issues. Just one letter can cover both topics, and should because these issues are inextricably linked in this RFE.
    At TheDegreePeople, we have experts on hand 24/7 with the highest rate of getting these RFEs overturned ready to write the letter you, or your employee or client needs to get that double RFE overturned. For a free review of your case and consultation, visit ccifree.com and we will get back to you in 48 hours or less.]]>

    Scroll to Top