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RFE? Surprise! The answer is not in the RFE

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posted Nov 15, 2016 in RFEs (H1B, I-140, PERM, Consulate) by Sheila Danzig (8,100 points)

It’s RFE season, and that means if you or your employee or client received an RFE, you’re probably reading it over and trying to decide what to do.  Before you go looking for answers in the RFE, stop!

Instead, read over the RFE, sit down with your team, and figure out which of the ORIGINAL H1B requirements are in question.  Next, discern what evidence and analysis needs to be provided for you or your employee or client to clearly meet these requirements.

Put down that RFE, and remember the five key H1B qualifications:

1) The job must be a specialty occupation.

USCIS defines specialty occupation as a job so complex as to require a US bachelor’s degree or higher or its equivalent to perform.  This is because specialized skills and knowledge are necessary to perform the duties of the job correctly.  To show that your job, or your employee or client’s job is a specialty occupation, you can provide the advertisement for the job that includes minimum qualifications for the job.  You should also provide ads for similar jobs in the same industry for companies of a similar size and scope.  If your job, or your employee or client’s job holds higher requirements than similar jobs because this particular situation requires specialized knowledge, include an expert opinion letter clearly explaining why this is the case.

2) You, or your employee or client must have a US bachelor’s degree or higher or its equivalency.

The H1B visa is for highly skilled workers to live in the United States and work jobs that require specialized skills and knowledge.  CIS requires beneficiaries of the H1B visa to hold a US bachelor’s degree or higher or its equivalent.  That means if you have, or your employee or client has a degree from outside of the United States – PARTICULARLY if it is a three-year bachelor’s degree or a degree that doesn’t call itself a degree like the Indian Chartered Accountancy certification – you need to submit a credential evaluation alongside the transcripts that clearly show its US academic value.  This can be difficult because educational systems vary from country to country.  The number of years it takes to complete secondary and post-secondary education are different, and the academic content is different.  A credential evaluator with specialized understanding of international education as well as visa education requirements and CIS trends is needed to write the evaluation you need, or your employee or client needs to answer the RFE.  CIS allows beneficiaries to combine years of progressive work experience in their field of employ – meaning the work experience required them to take on more responsibility as time went on – to fill in missing years in a degree.  Three years of progressive work experience in the field can be converted into the equivalent of one year of college credit in your client’s specialization.  This conversion requires a credential evaluator with the authority to convert work experience into college credit, and back it up with the necessary evidence and analysis.

3) The degree must match the field of employ.

Since your job, or your employee or client’s job is a specialty occupation, the education must be specialized to his or her field of employ.  In recent years, CIS has required the degree specialization to be an EXACT match – whereas in the past they accepted education in a related field and employers regularly hire candidates with related degrees and direct work experience in the field.  Of course, you need to answer the RFE with regards to CURRENT CIS approval trends, and that means your degree, or your employee or client’s degree specialization must match the job offer.  If you or your employee or client has a generalized degree or a degree with a major that is not an exact match for the job, a credential evaluation that converts years of work experience in the field into college credit counting towards that specialization is in order.  Additionally, a credential evaluator can take a close look at the course content of your degree, or your employee or client’s degree and count courses completed in the field of employ towards a degree with a major in that field.  Talk to a credential evaluator with experience working with education RFEs and decide the best course of action to meet this requirement.

4) The beneficiary and employer must have an employer-employee relationship.

Employer-employee relationships means that the employer has the ability to hire, fire, promote, pay, supervise, and otherwise control the work the beneficiary does as an employee.  If these terms are not clearly met, CIS will issue an RFE.  To show you or your employee or client meet this requirement, you can submit the employee manual or contract agreement to show CIS the nature of this relationship. 

5) The employer must pay the beneficiary the prevailing wages and benefits for the job.

The employer must pay the beneficiary the prevailing wages and benefits for the job, for companies of that size in that industry, and in that specific geographical location.  To prove this, you need to provide evidence of what those prevailing wages and benefits are, as well as evidence that the employer will be meeting those standards.  In addition, you must be able to show that the employer has the economic viability to do so without cutting resources from other employees or the company or organization itself.  The economic viability of the beneficiary’s employer is key.  To prove this, submit copies of the W-2 form, or paystubs if the beneficiary is already employed in this position under a different visa status.  You may also have to provide quarterly reports for the employer, tax information, or other evidence that shows that the beneficiary’s employer is able to provide prevailing wages and benefits.

Many RFEs have difficult wording and make virtually impossible evidence requests – most notably the Nightmare RFE.  An RFE does not have the roadmap to successfully answer it contained within it.  Read over the RFE, then return to the basics of what requirements need to be met for the H1B visa.

About the Author

Sheila Danzig

Sheila Danzig is the Executive Director at TheDegreePeople.com, a Foreign Credentials Evaluation Agency.  For a free analysis of any difficult case, RFE, Denial, or NOID, please go to http://ccifree.com/ or call 800.771.4723.


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