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  • Article: How to Avoid the RFE or Denial on the EB2 Petition. By Sheila Danzig

    How to Avoid the RFE or Denial on the EB2 Petition

    by


    Demand for EB2 Visas for highly skilled workers is at an all-time high. At the same time, RFEs and Denials in response to EB2 Visa petitions are also at an all-time high. With more and more jobs in STEM industries in the United States than American workers can fill, employers are turning to workers with advanced degrees and specialized science, tech, engineering and math skills from overseas. The United States highly skilled work force simply does not have the number of highly skilled STEM workers needed to subsist the rapidly growing industry and stay innovative and competitive in international trade. The EB2 Visa allows highly skilled foreign workers with advanced degrees and exceptional skills to stay in the United States and work on a path towards a Green Card. Only 40,040 of these Visas are available annually, and the slots fill up fast.

    With an onslaught of EB2 petitions and a limited number of Visa spaces, the USCIS has been forced to become picky. USCIS petition evaluators are looking for any red flags they can get to simplify the massive amount of work to be done each year sorting through who most qualifies for the limited number of slots. Meanwhile, STEM companies are not slowing down in seeking out foreign workers for EB2 positions because they cannot.

    If your client or employee has received an RFE or Denial on their EB2 Visa petition, don’t panic! This is an opportunity to strengthen your client or employee’s case. However, the best course of action is to avoid an RFE or Denial in the first place by giving the USCIS all of the information and documentation they need before they ask for it. An RFE is a red flag in and of itself, and as a red flag, it is an excuse to peel apart your client or employee’s petition to find little details that would have been fine without a big red flag pointing to them.

    To avoid an RFE or Denial, it is important to keep in mind several things:

    1. The education equivalence must match the education requirements on the PERM.

    2. The Bachelor’s Degree equivalence must be a single-source degree.

    3. USCIS Visa approval trends change.

    4. A PERSON will be reading this petition.

    If you and your client or employee keep these important things in mind, you drastically cut your chances of finding yourself face-to-face with an RFE or Denial.

    First, the candidate’s education must match the education requirement on the PERM. Second, this must be done without combining education or work experience because the Bachelor’s degree equivalence must be a SINGLE source degree. However, some credential evaluators well versed in federal case law and USCIS trends can prove that five years of progressive work experience in the field of employ is the equivalence of a US Master’s Degree in the field.

    With the EB2 Visa, the candidate’s bachelor’s degree must be a single source degree. This means, according to the 2006 Annual Conference of the American Immigration Lawyers Association, “For employment-based immigration visa purposes, the U.S. Citizenship and Immigration Services will not equate a three-year diploma plus a post-baccalaureate diploma as being the equivalent of a U.S. Bachelor’s degree for either EB2 classification.”

    This means an evaluation must be written to show the equivalence of a three-year bachelor’s degree to a US four-year bachelor’s degree in academic value without factoring in post-graduate education or years of work experience. A VERY common RFE or Denial for EB2 is combining education. This generally involves a degree that is less than four years and is combined with a PGD or another degree. However, a knowledgeable evaluator knows how to work with a two or three-year degree and avoid is issue by citing CIS memos, decisions, precedents, and other evidence. When working with a degree that is under four years, the evaluator should be consulted before filing. At CCI, we get three-year degrees approved regularly for EB2 filings, but ONLY with a good deal of details and holding CIS’s hand as we guide them through the complexities of the equivalency.

    The best way to avoid an RFE or Denial is to have the evaluator review ANYTHING except a very straightforward case with a four-year degree in the field.

    Third, be aware of USCIS trends and requirements. Trends are determined by federal case law and influenced by many factors, including but not limited to AAO cases. An evaluator who specializes in RFEs and Denials is best equipped to know what current CIS trends are, and also understands that these trends can change overnight. Which foreign degrees and certifications are equivalent to US degrees and certifications are based on federal case law and precedents. Discerning the value of education across countries and cultures gets real murky real fast. This is because of mistranslations, misunderstandings, and differences between academic structures. For example, some countries have degrees that do not call themselves degrees, but are the academic equivalent of US degrees. These non-degrees are also accepted as qualifications for further education and government job positions requiring a similar degree that calls itself a degree. CIS does not recognize these non-degrees as degrees without a thorough evaluation with an expert opinion letter holding their hand and crossing the T’s.

    If your client or employee has one such degree, you need an evaluation from a credential evaluator well versed in federal case law, Visa regulations and current trends. A skilled evaluator can show the equivalency that five years of work experience is equivalent to a US Masters degree in the field of employ. For complex cases, especially after an RFE or Denial, an expert opinion letter is needed.

    Finally, keep in mind that an overworked person will be reading the EB2 petition. Make his or her job easier and the odds will be in your favor. That means providing all of the necessary documentation and information the first time, in the right order. Clear, concise, and CONSISTENT answers make their job easier. If the petition is easy to read and understand, your client or employee’s chances of it being approved skyrocket. To ensure your client or employee’s petition is as readable as it can possibly be, go over all of the documents and forms several times to make sure all of the information is consistent. Make all new signatures in blue pen so the USCIS can easily tell which documents are copies and which documents are originals, and when the information given was verified. Go over the written sections of the petition and make sure the spelling and grammar is correct, and that the answers are clear, concise, and engaging as well.

    Give the USCIS what they want the first time and they won’t need to send you an RFE or a Denial. Make it an easy job for the USCIS to approve your visa. The best thing you and your client or employee can do for their petition is to anticipate what the USCIS wants before they have to ask for it.

    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.

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