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  • Article: H1B RFEs Continue to Rise Every Year. By Sheila Danzig

    H1B RFEs Continue to Rise Every Year


    The number of H1B petitions has significantly increased each year causing USCIS to have to close its doors to new petitions after just the mandatory five days they legally have to accept them. Alongside this increase, we have seen more and more RFEs every year. This is CIS’s attempt to eradicate visa fraud as well as make the best decisions possible about who of the growing pile of petitions gets approved for the set number of annual H1B visas. At the same time, CIS tracks companies to see how many visa petitions they file. Companies that have a disproportionately high number of employees filing for visas relative to their overall employee base tend to have a higher chance of receiving RFEs.

    In the past six or seven years, CIS trends regarding educational requirements for H1B visa status have changed, and more education RFEs have been sent out than ever before. Here are the three main RFE triggers we are seeing:

    1. Three-Year Bachelor’s Degrees

    Candidates with three-year bachelor’s degrees from other countries are consistently running into trouble with H1B visa approval. Since the H1B visa status requires that the job be a specialty occupation requiring a US bachelor’s degree or its equivalent or higher, CIS see the missing fourth year and assumes that this directly translates into missing academic content. If this is a situation you and your client are facing, the solution is to submit a detailed credential evaluation along with your client’s transcripts. The evaluation you need will examine the number of classroom contact hours in your client’s degree and use the Carnegie Unit conversion to translate 15 classroom contact hours into 1 college credit hour. Since a minimum of 120 college credit hours are required to earn a US four-year bachelor’s degree, all this evaluation must do is show that your client’s education consisted of a minimum of 120 college credit hours. This credential evaluation must be written by an evaluator with the authority to convert classroom contact hours and years of work experience into college credit. An authorized credential evaluator can convert three years of progressive work experience into one year of college credit.

    2. Mismatched Degree

    This is a relatively new CIS trend that has been causing RFEs in just the past six or seven years. Oftentimes, employers will hire employees with degrees in fields related to their job but not exactly matching because there is enough overlap in the knowledge base and skill set, or because the candidate also has work experience in the field. In previous years, a degree in a related field would not trigger an RFE. Now it does. If your client’s degree is in a field that does not match their field of employ, he or she is at high risk of receiving an RFE. You need to prove that although your client has a mismatched degree, he or she clearly has the correct knowledge base and skill set. Here’s how: submit a credential evaluation that converts years of work experience into college credit to fill in the gaps between your client’s degree and your client’s job. Three years of progressive work experience in his or her field of employ can be equated to one year of college credit towards a degree with a major in the required field with the right evaluation. Your evaluator can also take a close look at the academic content of your client’s degree and count courses in their field of employ towards a major.

    3. Generalized Degree

    For a job to be H1B qualified, the candidate must possess a specialized knowledge base and skill set in order to perform the duties of this job. For this reason, candidates with generalized degrees run into trouble. If your client’s degree is not specialized even though he or she does have the specialized skills and knowledge necessary for the job, he or she is at high risk for an education RFE. The solution is to submit a detailed credential evaluation with the petition that takes a detailed look at the course content of your client’s degree and counts courses taken in his or her field towards a specialized degree in the field of the job. This evaluation should also take years of work experience in his or her field of employ into account using the 3-1 progressive work experience conversion to show the equivalency of a US bachelor’s degree in his or her field of employ.

    After going through all of the time, money, and effort to file your client’s H1B petition, finding out CIS wants even more evidence and documentation can quickly become a nightmare, especially if you receive a complicated RFE. It has become the norm for CIS to request a response to an RFE in 30 days, which compounds the stress of an RFE because acquiring the evidence requested can take more time than you have to acquire it. Some H1B RFEs are so complex in what they request that they are almost impossible – and the Nightmare RFE is ACTUALLY impossible – to respond to in the way CIS requests.

    These situations require a creative approach. You need to think about why CIS is requesting the documentation they are asking for, and what issue these documents and evidence are meant to address. Oftentimes, you can answer their questions clearly within your realistic means. To do this, an in depth understanding of CIS trends is required. At TheDegreePeople, we follow CIS trends closely and understand what they will and will not accept as evidence, and we know how to clearly explain to CIS why the evidence and documentation presented answers the questions they are really asking.

    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, RFE, Denial, or NOID, please go to http://www.ccifree.com or call 800.771.4723.

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

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Doubts about educational qualifications are not the only issues which can draw RFE's in H-1B cases. A great many RFE's are based on the question whether the offered H-1B position qualifies as a specialty occupation. This can depend, more and more, on two factors.

      The first is whether the OOH (US Department of Labor's Occupational Outlook Handbook) entry for the job duties in question clearly indicates the educational background requirement as being a specialty bachelor degree. If the USCIS examiner has doubts about this, then no matter how much other evidence there is that the job is a specialty occupation according to the H-1B regulations, it is likely to be ignored or downplayed and the petition might be denied, no matter how much education the beneficiary has.

      Even if the OOH is clear about requiring a specialty bachelor degree for a particular position, if the salary offered according to the LCA is too low, i.e. "Level 1" instead of "Level 2" or higher, the USCIS examiner may question whether the offered position is a specialty occupation.

      A second RFE strategy, that is often used against smaller employers, is raising questions about whether the petitioner has enough work at an H-1B level available to "support" hiring an H-1B worker. This also has nothing to do with the beneficiary's educational qualifications.

      The above all goes to show that in preparing an H-1B case, it is just as important to make sure the the offered position, based on the job title, job description, salary level offered and the nature of the petitioner's business, qualifies as an H-1B specialty occupation, as it is to make sure that the beneficiary has the right educational qualifications.

      Roger Algase
      Attorney at Law
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