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  • Article: Who is to Blame for Your Client's H1B RFE? By Sheila Danzig

    Who is to Blame for Your Client's H1B RFE?

    by


    As foreign credential evaluators who specialize in handling RFEs and denials, we are constantly evaluating USCIS policy and trends. Just like last year and the year before, this year we have seen more H1B RFEs than we ever have in the past. When CIS issues an RFE, much concern and angst arises. A lot is at stake with Visa approval, so getting to this point in the process only to find more is being asked of you is a lot to stomach. Employers look to the attorneys, attorneys look to evaluators, and candidates panic.

    But whose fault is it REALLY and why does it matter whose fault it is anyway?

    True, sometimes it is the attorney or evaluators fault, but sometimes it is CIS’s fault.

    Sometimes it is the fault of the evaluation but not the evaluator.

    Sometimes it is CIS’s fault.

    Sometimes it is the candidate’s fault.

    Sometimes it is no one’s fault at all.

    It matters because there is absolutely no reason to get a new attorney or a new evaluator at this stage of the process if the RFE was not their fault.

    The first step to successfully responding to an RFE is to understand what is being asked for, and of whom is it being asked, and which party can provide the necessary evidence. Knowing who is at fault for the RFE is a big part of understanding how to move forward.

    When is it the attorney’s fault?

    Very rarely, an attorney will file an application incorrectly. Generally, however, the attorney error occurs when the candidate’s education is not reviewed by an education specialist before the application is filed. In this case, the candidate’s account of their education and experience is incorrect or does not meet the CIS requirements for the H1-B. Unless this is the case, don’t fire your attorney over an RFE.

    When is it the evaluator’s fault, and how can it be the fault of the evaluation but NOT the person who wrote the evaluation?

    There are situations when the RFE is clearly the evaluator’s fault because the evaluation was done incorrectly. For example, when a non-accredited PGD is listed as accredited, CIS jumps on that inaccuracy to issue an RFE. This rarely happens, because most evaluators are highly trained in spotting unaccredited education.

    However, every evaluation is different, and evaluations for different Visas must be written very differently. When an evaluator writes an evaluation for any particular visa, he or she needs to know both the Visa regulations AND current CIS trends. Not every evaluation agency is aware of the Visa regulations. The evaluator may have provided the evaluation ordered by the client, only to find that the equivalence does not work for the particular Visa. For example, someone with a four-year degree in electrical engineering can receive an evaluation written correctly showing an equivalency to a US bachelor’s degree in electrical engineering, but then receive an RFE because his or her job is in the field of computer software analysis. This sort of mismatch triggered an onslaught of RFEs this year. The evaluator did a good job, but the evaluation was not correct for the purposes of the Visa. In this case, you may have likely found the right evaluator, but he or she provided you with the wrong evaluation even though they acted in good faith. To avoid this, make sure you order your evaluation from an agency that knows education regulations for each Visa. If you advise an evaluation agency that you need an evaluation for an H1-B visa and they don’t ask about the job offer, find a new agency. The degree must precisely fit the field of employment for this Visa and the evaluator needs to know this information so they can evaluate an equivalency to the proper degree. If you are not asked about the job offer, the agency does not look at the Visa regulations and is not right for this job.

    If you have already paid an evaluator and a mistake was made, I suggest you go back to that evaluator to try to address your RFE. However, if the evaluation agency did not make sure that the evaluation was written for the particular Visa it was ordered for, that may just be how they operate. There is nothing wrong with that unless they lead you to believe that they evaluate for immigration and meet Visa requirements as part of their service. They may just be writing standard evaluations and not be authorized to make the conversions from work experience to education which is necessary to prove equivalency between fields or across educational system structures. You cannot expect an agency to do something they don’t claim to do. So the evaluation agency you want and need is one that will look at the education, as well as the visa requirements and current CIS trends.

    When is it CIS’s fault?

    Government bureaucracies make mistakes and some RFEs are simply factually incorrect. Everything in a petition could be done correctly and you can still receive an RFE. Often when CIS is at fault, the RFE will state that an accredited university is not accredited, or that a qualified evaluator is not qualified. While these RFEs are frustrating, they are usually also easy fixes. With the help of your evaluator, you can easily provide these facts and receive an approval.

    When is it the Candidate’s Fault?

    Candidates make mistakes. They have been known to insist that their high school documents are college level or that unaccredited education is accredited. They have also been known to provide poorly translated documents, or even fraudulently translated documents. Generally, a good evaluator can pick up on these problems before starting in on the evaluation, but not all evaluation agencies will review a candidate’s case before accepting payment and writing it. To be sure that no problems arise further down the road that can trigger an RFE, we always review all of the documents before accepting a credential evaluation order. Before we have seen all of the education documents, a resume, and the RFE or Denial if one has been issued, we have no way to discuss any given candidate’s case. We want to discover any issues in the documents right away in order to eliminate the vast majority of client confusion and misinformation.

    When is it no one’s fault?

    Sometimes, it really is no one’s fault. CIS trends change. As we have seen especially in the past seven or so years, CIS trends can change very quickly. We can only know what they generally do and what they have done in the past which helps a great deal. CIS can be a wildcard, and no one can guarantee what they are going to do. When this happens, all you can do is carefully read the RFE with your team, understand what is being asked of whom and who can provide the requested evidence, and then do your best to beat it.

    Can we draw a usable conclusion?

    Yes. The entire team should review the RFE. The attorney, employer, candidate, and evaluator. An evaluator with extensive experience with RFEs could be familar with the RFE and know how they have been resolved. Work with him or her to resolve the RFE. If you used an evaluation agency before receiving an RFE, go back to them. Next time, make sure you are working with an evaluation agency that reviews the education and Visa requirements and gives you all of your options before you order. If that is not their policy, it might be best to try a new agency. Remember that few agencies have passed through the RFE gauntlet this year unscathed, and many of these RFEs are not the fault of the agency, or the fault of the attorney or employer or candidate. Do your homework before you file because avoiding RFEs is far superior to resolving them.

    Reprinted with permission.


    About The Author

    Sheila Danzig is the Executive Director of CCI TheDegreePeople.com a Foreign Credentials Evaluation Agency. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/?CodeLWA/ or call 800.771.4723. Mention that you saw this in the ILW article and get 72 hour rush service at no charge.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      This article covers an important topic, but only from one angle. Academic credentials and evaluations are only one part of the RFE universe.

      In my 30 plus years of handling H-1B cases, most by far of the RFE's I have received have been over the issue of whether the offered position qualifies as a specialty occupation. There have been primarily two reasons for this: one is a bias against small employers on the part of USCIS examiners; the other is based on distorted readings of the OOH, which is given an importance by many examiners equaled only by the Delphic Oracle of classical Greece or the oracle bones of Shang Dynasty China, and is often no easier to make any sense of than these two ancient examples were.

      If the USCIS examiner doesn't think that the offered position is a specialty occupation, the H-1B candidate can have a whole slew of expertly evaluated Ph.D degrees from Oxford, Cambridge or the Sorbonne, and it will not do him or her any good. I have written previous ilw.com posts about examples of distorted OOH interpretations by H-1B examiners, and I will write more posts shortly about how the OOH lends itself to misunderstanding and misuse by examiners who may be looking for excuses to deny a case for any reason they can think of.

      Many H-1B RFE's could be avoided by more careful attorney preparation and focus on the specialty occupation issue. Academic credentials and evaluations, while important, are by no means the whole story on RFE's in H-1B cases. Far from it.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com
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