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  • Article: H1B RFE Season 2017 is Here! Are You Ready? By Sheila Danzig

    H1B RFE Season 2017 is Here! Are You Ready?

    by


    Welcome to the 2017 RFE season for cap-subject H1B candidates. The RFEs are in the mail and if this year reflects the years past, we expect one of every four H1B petitions to receive an RFE.

    If you or your employee or client receives an RFE, don’t panic! This is frustrating, but not the end of the world. You can make the most of the RFE to strengthen the case and turn that maybe into a resounding approval.

    Here’s the trick: First, sit down with your team and go over the RFE. Then, put the RFE aside and go back to the initial H1B requirements. Oftentimes, the RFE will not tell you how to answer it. In fact, some RFEs are virtually impossible to answer by their own guidelines. The secret to successfully answering an RFE is to discern which of the initial H1B requirements were not clearly met in the original filing, and then do what you can to fill in the gaps.

    To qualify for an H1B visa, a candidate’s job must be a specialty occupation. That means the minimum requirements for the job include holding a US bachelor’s degree or higher to perform the tasks of that job. The candidate and employer must have an employer-employee relationship, meaning the employer can hire, fire, pay, promote, and otherwise control the work the employee does. The employer must be economically viable and pay the candidate the prevailing wages and benefits for the job without cutting into operating costs. Finally, the employee must hold the proper degree or degree equivalency in the exact field of the job.

    If these requirements are clearly met, CIS will almost always approve the visa. However, CIS does have approval trends that change from year to year, and are specific when it comes to employee education.

    If you or your employee or client has a degree from outside of the United States, a generalized degree, or a degree that is not an exact match for their H1B job, you will need to provide a credential evaluation that fills in the gaps between the candidate’s education and the education CIS requires. This is a highly specialized process. The credential evaluation agency you want works regularly with H1B RFE cases and follows CIS approval trends.

    Before you get to far on your RFE response, let us provide a pre-evaluation with all of your options to help prevent or overturn an educational RFE. Simply go to ccifree.com and submit the educational documents and a current accurate resume along with the candidate’s job title or desired equivalence. We will get back to you within 24 hours with the pre-evaluation, a full analysis, and all of your options.


    About The Author

    Sheila Danzig is the Executive Director of CCI, TheDegreePeople.com, a foreign credentials evaluation agency. For a free 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 -
      This article correctly states that an H-1B job must be a "specialty occupation" for an H-1B petition to be approved, but the author then goes on, incorrectly, to say that s specialty occupation "means that the minimum requirements for the job include holding a US bachelor degree or higher to perform the tasks of that job."

      This definition misstates the heart of the H-1B law, which is that to be a specialty occupation, the job must be one that can normally be performed (at the entry level) only by someone who has a bachelor degree in a particular specialty directly related to the duties of the offered H-1B position.

      It is not enough to show that the the H-1B position (or employer) normally requires just any kind of bachelor degree to qualify for the position. It must be shown that the job normally requires a bachelor degree in a specific field. There is an extensive literature of USCIS RFE's, denial notices and AAO or even federal court decisions dealing with the question of whether a given H-1B position requires a bachelor degree (or equivalent) in a specific field.

      Anyone who is preparing an H-1B petition needs to consider this issue first and foremost. If it is not given proper attention, the petition may be denied, no matter how much careful and painstaking, top quality academic evaluation work of the kind that the writer of the above comment is distinguished for and expert in has been performed.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com

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