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  1. Over the past three H-1B cap-subject seasons, we have seen an unprecedented rise in specialty occupation RFEs calling jobs into question that had never run into trouble before. This trend is echoed across the entire H-1B visa program, with overall approval rates plummeting from over 80% in 2015 to around 60% for FY2019. USICS approval trends changing, however, is nothing new. Before the rise of the specialty occupation RFE, education issues were the big change. USCIS began issuing RFEs for petitions in which the employee held an advanced degree in a related field, requiring the employee have a degree in the exact field of the H-1B job. This threw a wrench in the system but we learned how to successfully answer these RFEs with detailed credential evaluations and creative solutions. The biggest solution when addressing difficult RFEs of any kind are to go back to the basics and go from there. It worked with education RFEs, and we have seen widespread success with it when facing specialty occupation RFEs. There are two main standards that must be met to qualify for H-1B status. Although USCIS has raised the burden of proof to meet these standards, these two rules continue to be the guide to overturn an RFE. The H-1B job must require a minimum of a US bachelor’s degree or higher to perform, and the H-1B employee must hold that degree or its equivalent. In the recent past, the issue was to prove the employee had a degree in the exact field of the H-1B job, which often required a credential evaluation to fill in the gaps between the employee’s education and the H-1B job. Now, we have to go several steps further in a similar way to prove that the H-1B job meets specialty occupation requirements. In the past, jobs that typically required a minimum of a US bachelor’s degree or higher as an industry standard were making the cut. Now they do not. One major example of this is the job of computer programmer. According to the US Department of Labor’s Occupational Outlook Handbook, sometimes employers will hire to this position with just an Associate’s degree. In the past, the exception was not viewed as the norm, but now USCIS is adjudicating as it is. To prove specialization, you and your team need to go further to prove why the job in question meets specialty occupation requirements despite the exceptions. You will need to provide a detailed breakdown of the duties and responsibilities of the job that highlight the ways in which specialized skills and knowledge are applied theoretically and practically. You will also need to show similar ads for the same job in similar companies in the industry to prove that a US bachelor’s degree or higher is the minimum requirement as a standard, as well as evidence of past employer hiring practices that show this minimum education requirement as a standard for this particular job. Along with this documentation, you will need to provide an expert opinion letter. This expert must have extensive field experience as USCIS has rejected opinion letters from instructors and professors in the field who have not worked directly in the field beyond instructing it. The expert will look over all of the documentation you have prepared for your RFE response and lend their opinion that this job does meet specialty occupation requirements. At TheDegreePeople.com we have the right experts on hand in every field, and our experienced staff can help you work through the jargon of even the most difficult RFEs as we work with them every year. USCIS approval trends change every year, and this challenge is no different. Start by going back to the basic eligibility requirements and work diligently from there. Remember, you only have 90 days from when you receive an RFE to respond to it. Time is of the essence and waiting until the last minute will just hurt your chances of success. For a free review of your case visit ccifree.com/We will get back to you in 48 hours or less.
  2. Over the past two years, H-1B jobs that had previously been approved as specialty occupations – such as electrical engineer or computer programmer – are now receiving RFEs as responses to initial petitions instead of approval. This is because USCIS has raised its standards of proof without a new law or regulation, and without notice. While USCIS approval trends change from year to year – and there are never any guarantees with USCIS – this change was sudden, drastic, and is a threat to STEM industries in the United States. Already H-1B restrictions are causing major STEM companies from expanding their business to the United States, and deterring international students from enrolling in US undergraduate and graduate schools, as the option to stay in the United States to work under H-1B status is a major impetus for these bright students to come in the first place. Only 20% of graduate students in US schools studying electrical engineering and computer sciences are US citizens. We need the other 80% to keep STEM industries in the US alive. If you have received, or if your employee or client received a specialty occupation RFE this season, it is important to fight it, not just for this individual case, but for the health of the H-1B program and for the survival of STEM industries in the US. At TheDegreePeople.com, we have answered countless specialty occupation RFEs successfully. Here is how we do it: First, we ask the beneficiary and petitioner to provide as much evidence and documentation they can to support the specialization and complexity of the position in question, as well as a breakdown of the factors that went into setting the wage level. Specialty occupation issues often come hand-in-hand with wage level issues in this double RFE. We prefer to answer them both at once to save time, and also to prevent a second round of RFEs in the future. Include the ad for the job that shows a minimum educational requirement of a US bachelor’s degree or higher or its equivalent, different ads for the same position in similar companies showing this minimum educational requirement, and proof of past employer hiring practices that show the petitioner regularly hires employees to the position in question with this minimum educational requirement. Also include a detailed breakdown of the duties and responsibilities of the job to highlight the theoretical and practical application of specialized skills and knowledge. Second, we will take what you gave us and pass it over to an expert in the field of the H-1B job. The expert will write an expert opinion letter explaining why this job meets USCIS specialty occupation requirements. We work with experts in all H-1B industries, all of whom have extensive experience working IN THE FIELD. USCIS will not accept expert opinion letters from professionals who are instructors or educators in the field alone. The expert must have extensive field experience for USCIS to accept their opinion and approve your visa, or your employee or client’s visa. Let us help you overturn your specialty occupation RFE, or your employee or client’s specialty occupation RFE. Visit ccifree.com/ for a free review of your case and consultation.
  3. The numbers show that the same specialty occupations approved for H-1B visas just a few years ago are now being called into question. According to Forbes, in FY2017 only 3% of H-1B extension petitions were denied. These petitions are for beneficiaries whose H-1B visas were previously approved. Then, in FY2018, the denial rate more than doubled, jumping to 12%, and then to 18% in the first quarter of FY2019. All of the top 27 employers of H-1B beneficiaries experienced this spike in denials for the same jobs they had been approved for. Meeting specialty occupation requirements for H-1B visa approval has become much more difficult. Jobs that had never before been called into question are now met with RFEs. One of these is the job of engineer. Last year we had dozens of clients come to use with specialty occupation RFEs for engineer. They were caught off guard because they did not expect they would have to defend the complexity of their job. These are different times, and it is essential to submit the initial petition in anticipation of a specialty occupation RFE. Last year, these RFEs were successfully answered with detailed documentation of the duties, responsibilities, and day-to-day tasks of the job that show practical and theoretical application of a highly specialized body of knowledge and skill. Petitioners also had to include the ad for the job, ads for the same job for different companies in the industry, and the employer’s past hiring practices to prove that requiring a minimum of a US bachelor’s degree or higher or its equivalent is the standard for the position in question. All of this documentation was shared with an expert in the field with extensive field experience. At TheDegreePeople.com we work with experts in all H-1B fields. Our engineering experts used the information provided by petitioners to write the expert opinion letters needed to overturn specialty occupation RFEs. When all of this is submitted with the initial petition, it greatly cuts a beneficiary’s chance of receiving a specialty occupation RFE. While there are no guarantees with USCIS, we always keep an eye on their approval trends, and meet each year’s new challenges with expertise and tact. If you, or if your employee or client received a specialty occupation RFE, we can help. Visit ccifree.com/ for a free review of your case. We will get back to you in 48 hours or less.
  4. When USCIS takes issue with one aspect of an H-1B petition, they rarely stop there. One common example is the Double Nightmare RFE, which is a specialty occupation RFE and a wage level RFE rolled into one. Complicated RFEs are answered by going back to the basic approval requirements. Getting wrapped up in the wording and specific demands of an RFE is a trap. Read it over with your team, then put it down and go back to the basics. For H-1B eligibility, a job must meet specialty occupation requirements, the beneficiary must hold the necessary advanced degree in the field of the H-1B job, there must be an employer-employee relationship, and the beneficiary must make the prevailing wage for the job in that industry, in that geographical location, for companies of that size. The Double Nightmare RFE calls two of these requirements into question. Beneficiaries making level one wages are especially vulnerable to this RFE because USCIS claims they either are not making the prevailing wage for the job, or the job is not a specialty occupation as evidenced by the low wage. This RFE can be answered with just one expert opinion letter that addresses both issues as they correlate. Your job is to provide the expert with as much detail and documentation about the job, its duties and responsibilities, past hiring practices, ads for that job and similar jobs as possible. The goal is to paint a detailed picture of why this particular position requires a minimum of a US bachelor’s degree or higher in the field to perform. You must also provide a breakdown of the factors that went into setting the wage level as it is, including the level of training and supervision the employee will need to start, and why this is the case. Again, providing documentation of past hiring practices and the starting wage for the job is essential. All of this is needed to provide the expert with the information needed to write the opinion letter your client needs to get that RFE overturned. The expert must be a professional in the field of the H-1B job with extensive field experience beyond just being an instructor or professor. USCIS routinely rejects expert opinion letters from experts who only teach the field rather than work in it. At TheDegreePeople.com we only work with experts with direct field experience to write expert opinion letters, and it works. If you, or if your employee or client has received a Double Nightmare H-1B RFE, we can help. Visit ccifree.com/ for a free consultation. We will get back to you in 48 hours or less.
  5. 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.
  6. Every year, a higher percentage of H-1B beneficiaries selected in the lottery receive an RFE this time of year instead of outright visa approval. If you, or if your employee or client received an H-1B RFE this year, there is a high probability that is was a specialty occupation RFE. Last year, USCIS bombarded H-1B petitioners with RFEs questioning whether their job met the requirements for “specialty occupation.” H-1B visas are work visas for foreign employees working jobs that require a minimum of a US bachelor’s degree or higher or its equivalent, and require application of specialized knowledge, skill, and understanding to perform. Last year, jobs that had never before been called into question were receiving these RFEs. Here is how to handle them: 1. You will need to provide the ad for the job that shows the degree requirement along with ads for the same position in the industry working for similar companies to show that the degree requirement is an industry standard. 2. You will need to provide evidence of past hiring practices for the company to show a consistent history of hiring employees with these advanced credentials. If this job is particularly specialized in a way that is not represented by an industry standard, this is especially important. 3. You will need to provide a detailed description of the duties and responsibilities of the job that clearly show application of specialized knowledge, understanding, and skill. 4. You will need to provide an expert opinion letter from a professional with extensive field experience in the industry. An instructor will NOT cut it unless they are also working in the field. The strength of this expert opinion letter will depend on how much information you can provide them from the first three points. The more details you can provide, the stronger case they can write to explain to USCIS why you, or your employee or client has been hired to a specialty occupation. At TheDegreePeople.com, we have experts in all industries on hand 24/7 to write the opinion letter you need, or your employee or client needs to address that H-1B specialty occupation RFE. For a free review of your case, visit ccifree.com. We will get back to you in 48 hours or less.
  7. A recurring RFE we see every year with H-1B candidates is the education RFE for the Indian three-year bachelor’s degree. Candidates who do not submit credential evaluations that account for the missing fourth year of education with their initial petition get RFEs about it this time of year. Graduate schools commonly accept the Indian three-year bachelor’s degree as an acceptable prerequisite to their programs, and employers will hire employees to specialty occupations with this credential. International trade and labor agreements recognize the Indian three-year bachelor’s degree as the functional equivalency of a US four-year bachelor’s degree. The number of actual classroom contact hours and college credit hours in an Indian three-year degree is equal to or greater than the 120 college credit hours that make up the US four-year bachelor’s degree. For all of these reasons, H-1B candidates and their teams overlook the persistent USCIS approval trend of NOT APPROVING beneficiaries with just this credential. The best way to both prevent and answer this RFE is to include a detailed credential evaluation that accounts for the missing fourth year of education. Regardless of how many college credit hours this three-year program actually has, USCIS is hung up on that missing fourth year, and USCIS is the gatekeeper of your visa, or your employee or client’s visa. At CCI TheDegreePeople.com, we rely on the work experience conversion option in these credential evaluations to account for the missing fourth year. USCIS accepts that three years of progressive work experience in the field of the H-1B job is the equivalent to one year of college credit in that major. You must prove that you, or your employee or client took on progressively more responsibility as time went on, and that the nature of the work increased in complexity. Then, one of our professors at TheDegreePeople.com with the authority to issue college credit for work experience, will write this conversion and it will be included in the credential evaluation. This evaluation will show USCIS that you DO have, or your employee or client DOES have the academic equivalent of a US four-year bachelor’s degree in the field of the H-1B job. If you have, or if your employee or client has an education RFE for an Indian three-year bachelor’s degree, we can help get it overturned. For a free consultation, visit ccifree.com/. We will get back to you in 48 hours or less.
  8. 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.
  9. Last year we had countless clients come to us with specialty occupation RFEs. Some of them came to us with RFEs that they had tried to get overturned with an expert opinion letter, and failed. One such client came to us with a specialty occupation RFE for computer programmer. He had submitted an expert opinion letter with the petition, anticipating issues arising. However, the expert opinion letter he included in his petition was from the WRONG expert. USCIS only acknowledges expert opinion letters written by experts that have extensive experience WORKING IN their field of expertise. Simply being a professor or instructor in the field does not cut it, they need to have a wealth of field experience of their own for their opinion to have the weight it takes to sway USCIS. At TheDegreePeople.com, we only work with experts with extensive field experience. While many of our experts are instructors, they also either work now, or have very recently worked directly in the field. When we send USCIS expert opinion letters, RFEs get overturned virtually every time. Of course, the expert opinion letter is only as good as the information provided. The more details you can give our experts the more credible and convincing their letter will be. If you, or if your employee or client received an H-1B RFE for specialty occupation, talk to us. Be sure to have detailed documentation of the duties and responsibilities of the position, the ad for the job as well as ads for the same position in different companies within the field, and proof of past hiring practices to prove that an advanced degree is the norm for minimum required education for entry into the position. We will advise you on anything else you may need for your, or your employee or client’s specific circumstance. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.
  10. RFE season is now, and when CIS finds one problem with a petition, they tend to find more. Over the past few years, we have seen a common double RFE involving specialty occupation and education issues. H-1B eligibility rules state that to qualify for H-1B status the H-1B employee must hold a US Bachelor’s degree or higher or its equivalent in the exact field of the H-1B job. The job must be a specialty occupation, one that requires a minimum of the H-1B educational requirements for entry into the position. This job must involve theoretical and practical application of a specialized body of skills and knowledge as evidenced by the advanced degree. This double RFE calls into question whether the job meets specialty occupation requirements, and whether the H-1B beneficiary meets educational requirements. Some common issues on the job topic are when an occupation sometimes requires this advanced degree minimum qualification, or when the job is set at a low wage level. Some common issues on the topic of the beneficiary’s education are incomplete college, a degree earned outside of the United States – particularly the Indian three-year Bachelor’s degree, no college or a degree from an unaccredited institution, and having the right degree but in the wrong specialization. The first issue can be addressed with evidence showing past hiring practices, the ad for the job and similar jobs that show the minimum requirements meet H-1B specialty occupation requirements, a detailed breakdown of the duties of the job, and an expert opinion letter. This expert opinion letter validates that the job does require specialized knowledge and skill earned through the education required by H-1B statutes, and the expert must have expansive experience working in the field of the specialization, beyond instructing. The second issue can be addressed with the right credential evaluation that takes the job and the education into consideration, along with H-1B requirements, CIS approval trends, and any training that took place in a classroom setting or through progressive work experience in the field to fill in any gaps between the beneficiary’s education and H-1B job requirements. At TheDegreePeople.com, we have experts on hand in all fields ready to write the expert opinion letter CIS needs to get the RFE overturned. All of our experts have extensive work experience in the field. All of our credential evaluators have been trained to work with difficult RFEs and have expertise in international education and particular visa requirements. Every credential evaluation is uniquely researched. If you or your employee or client receives an RFE this summer, time is of the essence. Visit ccifree.com/ for a free review of your case and advisement of how to best proceed.
  11. On behalf of Immisupport.com, we would like to congratulate all of you, who got the H1B picked in the lottery and received H1B receipt notices. We feel sorry for Aspirants who's petitions are not picked in the lottery, please don’t be depressed, it’s not the END of the world. H1B petitions that were filed under the Premium Processing Program USCIS has begun adjudicating the premium processing petitions on May 20, we heard that some Employers already received approval notices for H1B premium processing petitions. See official here Time Frame: After USCIS begins adjudicating the Premium Processing H1B petitions, USCIS will send a response within 15 calendar days. Yes, calendar days including Saturdays and Sundays. The clock has begun on May 20, 2019, and within 15 Days you should either get approval or an RFE (Request for Evidence). RFE (Request for Evidence): If an RFE is issued the clock will reset to another 15 calendar days from the date they receive a response from your H1B Employer and/or Attorney on record. Approval Notices: If your case is approved, your H1B Employer will first receive an email stating that the H1B is approved followed by a physical H1B approval notice. H1B petitions that were filed under Normal processing Time Frame: USCIS has begun adjudicating the H1B petitions filed under normal processing program on or after April 25. Adjudication of petitions may take anywhere between 1 month to 6 months, you may receive an approval notice or an RFE within this time. RFE (Request for Evidence): If an RFE is issued, USCIS will adjudicate the H1B petition in 60-90 days from the day they receive the response from your H1B Employer/Attorney Approval Notices: If your case is approved, your H1B Employer will receive a physical H1B approval notice. For normal processing H1B petitions, H1B Employer will NOT receive any email notifications. YOU MAY CREATE AN ACCOUNT AT USCIS.GOV WEBSITE TO RECEIVE EMAIL AND TEXT ALERTS FOR YOUR CASE, ANY CHANGE IN CASE STATUS WILL BE IMMEDIATELY NOTIFIED BY USCIS. RFE Section What is an RFE and why USCIS sends an RFE? RFE stands for Request for Evidence. While adjudicating an H1B petition, if USCIS is not satisfied with the provided documentation and/or information; USCIS will send a letter asking for more information to the H1B Employer/Attorney. USCIS also allows up to 3 months for sending a response. The processing time will then depend on how soon your H1B Employer/Attorney sends a response to the RFE Notice. While applying for an H1B visa with the USCIS, proper documentation is the key to avoid RFEs. The employer documentation is exhaustive and differs from Employer to Employer. I will post a separate article with an exhaustive list of documents, explaining the importance of each document, please subscribe to this blog or Facebook LIKE to get updates! What kind of RFEs can I expect? The most common requests for evidence are as follows and USCIS may ask for one single item or all of the items as listed below: Specialty Occupation Education of the beneficiary, foreign equivalency evaluation (if overseas education like India) Availability of a Project or Client with the H1B Employer Employer-Employee Relationship, Client Letters Employer Business Maintenance of Status for beneficiaries in the United States (Filed under Change of Status to H1B) RFEs on Specialty Occupation (This is now a nightmare and most RFEs/Denials are based on the Specialty Occupation) USICS needs information from the Employer to confirm that the offered job qualifies under specialty occupation. In other words, the job needs someone with a specialized knowledge possessing at least a bachelor’s degree in a related field. USCIS will specifically request the H1B Employer to explain the nature and complexity of the job and why it requires someone to possess a bachelor’s degree to perform the job. Your H1B Employer should explain the job in detail with examples; time spent for each task/duty on a weekly basis. It is the responsibility of H1B Employer to show evidence to USCIS and provide proper documentation. Example: To perform a Job of a Programmer/Analyst one may require a bachelor’s degree and the occupation Programmer/Analyst qualifies under specialty occupation To perform a job of an Administrative assistant, one does not require a bachelor’s degree and the occupation Administrative Assistant will NOT qualify under specialty occupation It is very important to note that USCIS will not simply go by the Job title while adjudicating the H1B petitions, they will rely on job duties. What is a Specialty Occupation? In order to perform services in a specialty occupation, you must meet one of the following criteria: Hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university Possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university Have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or As determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. Specialty occupations may include but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants. RFEs on Education and Experience The offered job should be directly related to the field of study. If you have a US Master’s Degree in Chemistry and your H1B job is Programmer/Analyst which not related, it would trigger an RFE. USCIS will send an RFE asking the H1B Employer to show the evidence “How the beneficiary will work as a Programmer/Analyst when his/her field of study in Chemistry” The educational evaluation for overseas degrees is usually ignored while sending the H1B Petition, you may have a BS degree in Computer Science or an MCA; USCIS must get a document stating the equivalency of your Education in the United States to determine the level of your education. For Indian degrees like IIT, IIM are exempt from this requirement. What is an Educational Evaluation or Foreign Credentials Evaluation? Your foreign education and/or experience is evaluated by a Private Agency or a University Professor to determine your educational equivalency when compared to the United States degree. Since your education is from another country, there is no way USCIS can determine that you have a valid degree. In some cases, where your education is NOT directly related to the job offered, an evaluator may use your experience to determine the equivalency. Every 3 years of work experience is counted towards 1 year of college in a related field. Example: Bachelor’ in Engineering (Mechanical) + 3 Years of IT Experience = Bachelor’ in Engineering (Information Technology or Computer Science) My H1B was applied as a Programmer/Analyst and I have a non-related degree with IT Experience, equivalency evaluation has not been submitted, would I get an RFE? Yes, most likely. USCIS must determine that you qualify for the job and you have related degree and/or experience. If you have any questions on the Education part, please post in comments, one of our H1B supporters is a professional educational evaluator and she will answer your questions. RFEs on Availability of a Project or Client This is the most important item, especially when an H1B is filed by a Consulting Firm. If you’re H1B was applied by a large company with A/K/A full-time basis, you may not worry about an RFE for this item. But, for IT consulting firms, it is a big problem to show sufficient H1B specialty work for the requested H1B period of Employment. USCIS wants to confirm that the H1B Employer has sufficient specialty occupation work available with the H1B Petitioner. A petitioner may have good revenue and bank balance to pay the salary, unlike the GC process; ability pay is not required for H1B petitions. H1B Employer must demonstrate the following: A viable existing internal/in-house project with Market analysis, customer base, and competitor analysis to employ the beneficiary under H1B basis OR A contract/client letter from a Client showing that a Specialty occupation work available for the requested H1B period of Employment RFEs on Employer-Employee Relationship This is a trivial RFE and H1B Employers/Attorneys have a tough time responding RFEs related to Employer-Employee Relationship What is this Employer-Employee Relationship? On January 08, 2010, USCIS Director issued a Memo concerning H1B Employment and how the H1B Worker will be controlled by the H1B Employer while working at a third-party client site. See the official Memorandum. The memorandum also discusses examples of evidence the petitioner may submit in order to establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Examples of that evidence include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client. Common Law (Internal revenue Service): Under the common law rules, every individual who performs services that are subject to the will and control of the employer, as to what must be done and how it must be done, is an employee. However, H1B Employers cannot simply state that we will be paying the beneficiary and he/she is our Employee. There are a number of factors beyond Payroll, benefits, performance reviews to be considered while providing a response to such RFEs. If the H1B Employer is not careful while sending a response for this item, it may end up in your case being denied. On February 18, the USCIS held a "Collaboration Session" in Washington, D.C., to address the growing concerns about the implications of the Neufeld Memo. Approximately 500 people (400 via teleconference) attended the two-hour session, in which USCIS officials responded to the "unintended consequences" caused by the Neufeld Memo. H1B Employers must demonstrate how they control the beneficiary’s employment while H1B workers are placed at a third-party client site, it is a common scenario if your H1B Employer is a Consulting firm. see illustration below. H1B Employers must demonstrate their ability to supervise and control H1B Employee’s Work/Product and the ability to hire/fire the H1B Employee. Also, demonstrate that only H1B Employer has the right to assign additional duties to beneficiary NOT the Vendor and/or Client. Citing the H-1B regulations, the Neufeld Memo explains that a U.S. employer that files an H-1B petition must have "an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee." Adjudicating officers are instructed to weigh the following factors when determining whether a valid employer-employee relationship exists: Does the petitioner supervise the beneficiary and is such supervision off-site or on-site? If the supervision is off-site, how does the petitioner maintain such supervision, i.e., weekly calls, reporting back to the main office routinely, or site visits by the petitioner? Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required? Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment? Does the petitioner hire, pay, and have the ability to fire the beneficiary? Does the petitioner evaluate the work-product of the beneficiary, i.e., progress/performance reviews? Does the petitioner claim the beneficiary for tax purposes? Does the petitioner provide the beneficiary any employee benefits? Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment? Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business? Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished? The Memo emphasizes that the determination of whether an employer-employee relationship is valid should hinge on the extent to which the petitioner has the right4 to control the beneficiary's work, i.e., control over when, where, and how the beneficiary performs the job. In addition, adjudicating officers should consider the totality of the circumstances when weighing these factors, including the nature of petitioner's business and an H-1B beneficiary's work. Furthermore, the petitioner must maintain the right to control the beneficiary's work throughout the H-1B validity period in order to constitute a valid employer-employee relationship in the H-1B petition context. How is this possible, I will be working at the Client site, I may be reporting to the client manager? Unfortunately, based on the Neufeld Memo and regulations, H1B Employers must demonstrate that your H1B Employers controls your Employment. What type of evidence can we submit to satisfy this requirement? In addition to analyzing the parameters of a valid employer-employee relationship, the Neufeld Memo specifically includes the following list of the types of evidence that an H-1B petitioner may submit with an initial petition in order to demonstrate that a valid employer-employee relationship will exist for the duration of the H-1B validity period: A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names, and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested; Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment; Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary; Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized) that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees; Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provides information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence; Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner; A description of the performance review process; and/or Copy of petitioner's organizational chart, demonstrating the beneficiary's supervisory chain. The evidence that H1B Employers can submit may vary, if you have a particular situation, please comment below and I will provide information. There is some good news that USCIS has relaxed this regulation with FAQs, by adding that a Client letter may not be required if the following is met. Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location? No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist. RFEs on Employer Business USCIS must determine that the Employer is in the business and satisfy the requirements of the United States Employer. There are a number of documents your Employer can submit based on the type and size of the Employer “Under C.F.R. 214.2(h) (4)(ii) “United States employer,” is defined as follows. United State employer means a person, firm, corporation, contractor, or other association, or organization in the United States which: (1) Engages a person to work within the United States; (2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and (3) Has an Internal Revenue Service Tax identification number.” What documents can the H1B Employer submit to satisfy this requirement? Tax ID Letter from IRS Tax Returns Company registration documents Office Lease or Ownership Telephone or utility bills Website screenshots Yellow Pages or Google Listings RFEs on Maintenance of Status for beneficiaries in the United States (Filed under Change of Status to H1B) These items cover RFEs issued only for H1B petitions for beneficiaries who are presently in the United States to seek a change of Status to H1B as of October 01. Based on your present status, you may be required to submit the following information. Change of Status from F1/OPT/M1/J1 All forms I-20 and OPT Cards Confirmation of tuition payments to school Eligibility of Cap-Gap (if any) Change of Status from F2/J2 All form I-20s of Spouse Confirmation of tuition payments to school Marriage Certificate Change of Status from L1 Paystubs as of H1B filing date L1/I-797 validity until September 30 or I-94 Change of Status from L2 Paystubs of the spouse as of H1B filing date L1/I-797 validity of spouse until September 30 or I-94 L2/I-797 validity until September 30 or I-94 Marriage Certificate Change of Status from H4 Paystubs of the spouse as of H1B filing date H4/I-797 validity until September 30 or I-94 Marriage Certificate Change of Status from B1/B2 I-94 Validity until September 30 Conclusion on RFEs: USCIS may request all the above information or a combination of information based on the documents initially submitted with the H1B petition. I did my best in providing the information on RFEs, please comment if I have missed anything. NOID (Notice of Intent to denial) – What is this? On rare occasions, USCIS issues a NOID on particular H1B petitions, when USCIS determines that there has been misrepresentation or fraud while filing the H1B petitions. The NOID may be sent before an RFE or after an RFE response is received. I will not be discussing much about the NOIDs; I will post another Article with respect to NOIDS. H1B Approval Notices Section Hooray… The H1B is approved, what are the next steps? H1Bs with COS (Change of Status as of October 01) If you are in the United States and your H1B is approved with COS as of October 01, you may begin employment. Do I require H1B Visa Stamping? NO. You do not have to stamp an H1B visa to begin work as COS is approved. However, you need a visa if you want to travel. H1Bs with Consular Processing Presently in the United States: Option # 1: Your Employer may file an amendment and change status to H1B at a later point of time when there is a project (usually with consulting firms) Option # 2: You may go to a US Consulate to get an H1B visa stamping and return on H1B Presently Overseas: H1B Employer needs to send an H1B petition package to obtain an H1B visa stamping at your home country.
  12. USCIS has completed selecting the 85,000 H-1B petitions to be adjudicated for approval for cap-subject petitions for FY 2020. Those selected that filed for premium processing may begin receiving notice this week as to their approval status with the anticipated date of completion set on June 4th. Case adjudication for those who did not file under premium processing will begin early to mid-June and often takes months. Last year, adjudication for FY 2019 – which began October 1st, 2018 – extended into the 2019 calendar year. If you are unsure of whether or not your case was selected, check the account activity on the account of the check written for the H-1B processing fee. If it has been cashed, your case was selected in the lottery. When a notice arrives of the status of the case, do not be alarmed if you receive an RFE or Denial. This is NOT the end of the road. Over the past few years, the prevalence of H-1B RFEs spiked, especially for beneficiaries working entry-level positions, working as computer programmers, and working at wage level one. This year, USCIS adjudicators have been given the authority and encouragement to deny petitions outright without first issuing an RFE. This may lead to a spike in Denials instead of RFEs. Either way, they are possible to overturn and get the visa approved in time to get to work for FY 2020. If you expect an RFE or Denial is coming this H-1B adjudication season, you can better prepare to defend your case or your employee or client’s case. You will need a detailed credential evaluation that takes the job, the visa, USCIS approval trends, and any issues found in the case into consideration. You will also need documentation that details the demands, duties, tasks, and responsibilities of the job, and a detailed breakdown of employer and industry hiring practices with regards to minimum qualifications for the position in question. Finally, you will need an expert who works IN THE FIELD rather than just teaches it to write an opinion letter that ties the evidence you have provided together. First and foremost, however, you will need to take an honest look at your case, or your employee or client’s case and identify what might attract scrutiny by USCIS that could result in a visa Denial. At TheDegreePeople.com, we work with RFEs and Denials every year. We understand what triggers them and we know how to successfully respond to them. 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.
  13. Below is a list of the top reasons, in order from most to least common, that RFEs were issued in fiscal year (FY) 2018 for H-1B petitions. RFE Discussions group https://www.facebook.com/groups/rfediscussions H1B Extension or Transfer Denied (To know next steps) https://www.facebook.com/groups/h1bextensiontransferdenied/ 1. Specialty Occupation : The petitioner did not establish that the position qualifies as a specialty occupation as defined in section 214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii). 2. Employer-Employee Relationship : The petitioner did not establish that they had a valid employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period. 3. Availability of Work (Off-site) : The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition. 4. Beneficiary Qualifications: The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation per 8 CFR 214.2(h)(4)(iii)(C). 5. Maintenance of Status: The petitioner did not establish that the beneficiary properly maintained their current status. This category is reflective of many different reasons that status may not have been maintained. 6. Availability of Work (In-house) : The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition. 7. LCA Corresponds to Petition : The petitioner did not establish that they obtained a properly certified Labor Condition Application (LCA) and that this LCA properly corresponds to the proffered position and terms of the petition. 8. AC21 and Six Year Limit : The petitioner did not establish that the beneficiary was eligible for AC21 benefits or was otherwise eligible for an H-1B extension as it appeared that H-1B had hit the six-year limit. 9. Itinerary : The petitioner did not meet the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B), which requires petitioners to submit an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of services to be provided. 10. Fees : The petitioner did not establish that they paid all required H-1B filing fees.
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