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H1B Alert: Don’t Submit the Right Evaluation for the Wrong Visa

If you or your client or employee has a degree from outside of the United States, or a degree that is generalized, incomplete, or doesn’t exactly match the specialty occupation, you need to submit a credential evaluation with the H1B petition to prove that the beneficiary meets H1B educational requirements.

However, not all evaluations will do the job. The right evaluation for you or your client or employee needs to take into consideration H1B requirements – as different visas have different regulations for combining education – as well as the beneficiary’s education, work experience, and job, and CIS approval trends.

It’s important to make sure you choose the right evaluation agency to work with because the industry is not well-regulated by a central governing body, so you could end up with an agency that is not up to quality standards. You could also choose an agency that writes a perfectly accurate evaluation that does not work for your client or employee’s situation. Not all agencies know how to work with visa cases.

When you contact a credential evaluation agency to write your evaluation, or your client or employee’s evaluation, here are three questions to keep in mind:

  1. Did they ask about the visa?
  2. Did they ask about the job?
  3. Do they work with H1B cases and their RFEs on a regular basis?

The right evaluation agency for you case, or your client or employee’s case is the one that asks about the visa and the job, and works regularly with H1B cases and H1B RFE cases.

We follow CIS approval trends, and work regularly with H1B cases and their RFEs. We know what triggers common RFEs, and we know how to prevent them. For a free review of your case, or your client or employee’s case, visit evaluationcredentials.com.

Your H1B Checklist for FY 2019

April 1st is coming up fast and that means it’s time to get started on H1B petitions for fiscal year 2019.

For the past few years, the H1B quota of 65,000 visas and an additional 20,000 for candidates with US Masters degrees or higher or their equivalency has been met within the mandatory five business days that CIS must continue to accept petitions, causing the H1B lottery.  This year, we predict the same situation. That means you need to be ready to file right on April 1st.

Before you file, make sure your petition, or your employee or client’s petition is seamless.  With so many petitions and so few annual cap-subject visas available, CIS is on the lookout for shortcuts to make their job easier.  Don’t let your petition, or your employee or client’s petition raise any red flags.  Make sure the requirements are met, and always be aware of common RFEs and CIS approval trends.  We work with difficult cases and RFEs every year and we keep a close eye on what CIS is doing.  Based on what we’ve seen over the past few years, here are some things to keep in mind when organizing the petition:

1. Does the job meet H1B requirements for specialization?

To qualify for H1B eligibility, the job must have a minimum requirement of a US bachelors degree or higher or its equivalent.  To prove this, include the ad for the job that specifies its requirements, and include evidence that similar jobs in the industry require the same credentials.  If this job requires a unique level of specialization that is unusual to the typical occupation, include a detailed description of the job and its duties and an expert opinion letter explaining why this job requires an advanced degree to perform.

Last year, CIS used this H1B requirement to issue the Level 1 Wages RFE to an unprecedented number of computer programmers petitioning for H1B status.  Their reasoning was that according to the Occupational Outlook Handbook by the US Department of Labor, entry level computer programmers are sometimes hired with only a US associates degree, which does not meet the H1B requirement of a US bachelors degree or higher.  This RFE caught everyone off guard and we won’t know until RFEs come out for the FY 2019 round of petitions whether or not measures to prevent this RFE will work.  However, if you, or your employee or client has this job at this wage level, here are our recommendations:  If you can, set the job at Level 2 Wages, or indicate a different occupation if you can.  The second option gets tricky because the job on the LCA must match the job on the H1B petition.  Before you try to fit your job, or your employee or client’s job into a different category, consult with us to make sure the job title fits the description, and that the job indicated also meets H1B requirements.  If you cannot take either of these measures, include an expert opinion letter that explains why this job meets H1B requirements.  We have experts on hand 24/7 to help you with this, and we have had great success in answering these RFEs.

2. Does the beneficiary and the employer have an employer-employee relationship?

To meet H1B requirements, the employer must be able to hire, fire, promote and demote, pay, and otherwise control the work the employee does.  Along with this relationship comes the H1B requirement to pay the H1B employee the prevailing wages and benefits for similar jobs in that industry in that geographical location.  To prove this, include a copy of the employment contract and documentation that details the nature of the employee’s work.

This is another area that CIS came down on H1B candidates last year with the Level I Wages RFE.  This issue can be addressed through the means mentioned above.  More importantly, it is important to explain the CIS in the expert opinion letter that just because a job is set at Level 1 Wages doesn’t mean it is entry level, and if it is not entry level, it does not mean that the employee is being underpaid.  That’s not how wage levels work; there are many factors to be taken into consideration that must be detailed in the expert opinion letter.  Including this with the initial H1B petition may be the key to preventing this difficult new RFE.

3. Does the beneficiary clearly meet H1B educational requirements for the job?

H1B educational requirements state that to be eligible the beneficiary must have a US bachelors degree or higher or its foreign equivalent.  You, or your employee or client must hold an advanced degree that meets the requirements for the H1B job.  For the better part of the past decade, CIS approval trends have shown that the degree specialization must be an exact match for the job title.  This is where things get tricky.

If the degree specialization is not an EXACT match for the field of employment, the beneficiary will need a credential evaluation that utilizes years of progressive work experience and a close examination of the courses taken within the degree program to write an evaluation that solidifies the equivalency to the correct degree in the correct field.

If the degree was earned outside of the United States, you will need to include a credential evaluation that clearly spells out the academic value of the degree in terms of US educational standards.  Some degrees, like the Indian three-year bachelors degree, are RFE magnets because CIS is hung up on the missing fourth year even if there are an equal or greater number of actual classroom contact hours in the three-year degree.  Some jobs like Computer Systems Analysis are RFE targets because there are very few colleges and universities that offer that specific major track.

For these two circumstances, you will need a professor with the authority to issue college credit for work experience to write an evaluation that converts years of progressive work experience in the field of the job into years of college credit.  Progressive work experience means that the nature of the work became more complex and specialized, and the beneficiary took on more responsibility as the work experience progressed.  This indicates that skills and knowledge specialized to the field were learned on the job.  We have professors on hand with the authority to write these evaluations.

The final hangup with regards to education that tends to trigger an RFE happens when a beneficiary has a degree that doesn’t have the word “degree” in the title.  For example, the Indian Chartered Accountancy certification is actually the equivalent of a US bachelors degree in accounting.  The Canadian Chartered Accountancy and the US CPA are not bachelors degree equivalents.  If you or your client or employee has earned an Indian Chartered Accountancy certification, this credential DOES meet H1B eligibility requirements. You will need to submit a credential evaluation with the H1B petition that clearly describes the steps of education and exams – matriculation structure – required to earn this certification to show that the steps involved are equivalent to a US bachelors degree in accountancy.

Before you file, let us review your client’s entire case to make sure there are no red flags, missing documentation or analysis, or gaps between the beneficiary’s job and education, and H1B eligibility requirements.  Simply visit evaluationcredentials.com and submit the educational documents, resume, and job description and we will respond within 48 hours with a full analysis and pre-evaluation of the case, and our recommendations for how to preempt an RFE for the FY 2019 filing season.

How to Use the Level 1 Wages RFE as a Tool

It seems like every year CIS is coming out with a new difficult RFE to throw H1B beneficiaries and their employers and attorneys a curve ball.

This year, we were all caught off guard by the Level 1 Wages RFE that targets computer programmers. As with all other years, this RFE is an opportunity to strengthen your case, or your client or employee’s case when you respond to it. In fact, your response to this RFE should be viewed as a tool to do this, and to preempt a second round of RFEs.

When you respond to the Level 1 Wages RFE, it’s important to be aware of other risks involved in your case, or your client or employee’s case. Some jobs, like Computer Systems Analyst, are RFE magnets. Some degrees, like generalized degrees or the Indian three-year Bachelors degree, also attract a disproportionate number of RFEs. If a candidate’s degree is not an exact match for their H1B job, CIS is likely to issue another RFE about that issue when you answer the first. That’s why when we answer the Level 1 Wages RFE, we review our clients’ entire case and write a credential evaluation that preempts these situations.

Don’t let the Level 1 Wages RFE catch you off guard or distract you from the classic RFEs we’ve seen year after year, because they haven’t gone away.

For a no charge and no obligation review of your case, or your employee or client’s entire case, please contact us.