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Over the past two years, lawyers, employers, and H-1B beneficiaries have suspected USCIS raised its standard of proof for H-1B visa approval without any new law, regulation, or notice to the public. This was evidenced anecdotally with jobs that had never before been called into question for meeting H-1B specialty occupation requirements suddenly being hit with an unprecedented rate of RFEs instead of approvals, like computer programmer and engineer. When USCIS released its H-1B Employer Data Hub, it became clear these suspicions were correct. The National Foundation for American Policy analyzed the report and found that, “Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for initial H-1B petitions never exceeded 8%, while today the rate is 3 to 4 times higher.” Following the notorious April 2017 executive order, “Buy American, Hire American,” denial rates for initial H-1B petitions nearly doubled from 13% in FY 2017 to 24% in FY 2018, and then climbing to 32% in the first quarter of 2019. H-1B extensions and transfers saw similar spikes even though these petitions are for workers who had previously been approved and for jobs that had previously been approved. The same workers and the same jobs that qualified just a few years ago are now being denied at unprecedented rates. In FY 2017 the denial rate for these petitions was 5%. The rate more than doubled in FY 2018 to 13%. Along with this statistic, the top 27 employers of workers holding H-1B visas all experienced denial increases between FY 2015 and the first quarter of FY 2019 for H-1B extension petitions. These are petitions for the same job and worker that were previously approved. This shows that the standard of proof has changed without any new law, regulation, or notice to the public. The same workers and jobs that met H-1B requirements just a few years ago suddenly do not. USCIS is restricting H-1B visas, as evidenced by their denial trends. This is beginning to have what may turn into catastrophic effects for STEM industries in the United States. Already, STEM businesses that are expanding internationally are choosing to open branches elsewhere. International students are choosing to go to other countries for undergraduate and grad school because job prospects following their education in the US rely on the H-1B program. At this time, only 20% of all graduate students in US schools studying computer sciences and electrical engineering – fields the STEM industries depend on – are US citizens. It has been known for a long time that STEM industries in the US depend on the H-1B program to remain globally viable. If you, or if your employee or client receives an RFE or Denial this H-1B season, it is imperative that it be fought. The burden of proof is higher now than it has ever been before, and that means we need stronger petitions, and strong RFE responses. For a free review of your case, visit ccifree.com/. We will get back to you in 48 hours or less.
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.
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.