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Case Study: Overturned Specialty Occupation RFE for Computer Programmer

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Sheila Danzig

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Keeping in pace with the past two years, specialty occupation RFEs are common this RFE season, and computer programmers have been hit especially hard yet again.

Computer programmers – especially those making level one wages – are especially vulnerable to specialty occupation RFEs because entry level computer programmers can sometimes be hired with only a US associate’s degree.  H-1B specialty occupation requirements state that an occupation must require a minimum of a US bachelor’s degree or higher to enter the position.  For this reason, computer programmers have been running into trouble.

There are two main problems with USCIS’ rationalization for this RFE:

1. When an occupation SOMETIMES only requires an associate’s degree but USUALLY requires a bachelor’s degree, the USUAL should mark the industry standard, not the exception.

2. USCIS wrongly assumers that when a job is set at level one wages it is an entry level position or the wage level is set incorrectly.  H-1B requirements also state that the employee must be paid the prevailing wage for the job.  That is why this RFE so often arrives a double RFE calling both the job specialization and the wage level into question.  However, there are many factors that go into determining a job’s wage level and just because a job is set at level one wages does NOT mean that it is an entry-level position.

We recommend including an expert opinion letter in your initial petition in which an expert in the field of computer sciences with extensive FIELD EXPERIENCE beyond just instructing explains why the job is a specialty occupation requiring application of advanced skills and knowledge.  Unfortunately, not every expert opinion letter is accepted by USCIS.

Sometimes it’s the wrong expert.

 

USCIS will only accept expert opinion letters from professionals with extensive field experience and prestige in the field of computer sciences.  Letters from instructors and professors who do not also work directly in the field don’t cut it. 

Sometimes it’s your fault.

 

It is up to the H-1B employee and employer to provide the expert with enough details about the job for the expert to write a letter USCIS will accept.  That means providing the ad for the job, proof of past hiring practices that show an advanced degree is normally a required minimum, a detailed breakdown of the duties and responsibilities of the job, and the factors that went into setting the wage level.  Many employees fresh out of college require a higher level of training and supervision when they first start, which significantly contributes to a lower starting wage even though an advanced degree is required.

At TheDegreePeople.com, we have experts on hand with field experience to write the evaluation you or your employee or client needs to get that RFE overturned.  We will advise you on what information to provide to make sure your expert gets everything they need for success.  For a free review of your case visit ccifree.com/.  We will get back to you in 48 hours or less.

 

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