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Specialty Occupation and Wage Level H1B RFEs: Who Dropped the Ball?

When an RFE arrives, it means CIS does not have enough information from the initial H1B petition to make a decision about your case, or your employee or client’s case.

If you or your employee or client receives an RFE, don’t panic. RFEs have become very common, and can be a helpful tool to fortify the case for approval. Sit down with your team and carefully read through the RFE, then put the RFE down and go back to the original H1B eligibility requirements and see where the case is lacking. In this process, it is important to see who dropped the ball, and how to pick it back up. This does not mean pointing fingers, placing blame, or spouting anger. Oftentimes the reason for the RFE is changing CIS approval trends. Sometimes it’s no one’s fault.

Specialty occupation and wage level RFEs jumped ahead of education RFEs in response to last year’s lottery. H1B requirements state that to be eligible for this visa the job must require a minimum of a US bachelor’s degree or higher or its equivalent to gain entry into the position. This must be an industry standard, or you must go a step further to prove that this position is uniquely specialized and holding an advanced degree is consistent with employer hiring practices. The job must also pay the prevailing wage for the job in the industry, for companies of that size in that geographical location.

Last year, computer programmers making level 1 wages were hit especially hard with RFEs. CIS claimed that since some employers will hire entry-level computer programmers with only an associate’s degree, the job does not meet specialization requirements, or the wage level is not set correctly. One of the main problems with the reasoning for this RFE is that wage level does not necessarily determine the specialization of the position, rather it is set in accordance with the prevailing wage and takes the level of training and supervision required for the employee into consideration as well.

Specialty occupation RFEs and wage level RFEs are so interconnected they often come together. Now that we know what we’re dealing with, let’s see where the fault may lie.

Sometimes it’s nobody’s fault. CIS approval trends change, and the best we can do is learn for the approval trends of last year, and what RFE responses worked and which ones did not. Sometimes it’s CIS’ fault. You could file an immaculate petition and still receive an RFE. CIS could be unreasonable with their justification for the RFE, or just plain wrong. Whatever the reason, you still must answer it.

Sometimes the attorney will make a mistake when filing, there will be omitted pages in the petition, or it will be filed out of order. Sometimes it’s the beneficiary’s fault. Providing poorly translated educational documents, misconceptions about the value of a credential’s academic value, and providing misleading or false information in resumes happens. These mistakes are not necessarily on purpose, even if it involves providing false information. Sometimes names are misspelled or answers are inconsistent from one document to the next.

Sometimes it’s the employer’s fault. Maybe the job really is set at the wrong wage level. Maybe the job indicated in the LCA is different than the job title in the petition. Inconsistencies across documents are easy mistakes to make, especially in the rush to file by April 1st, but these mistakes have far-reaching consequences. Maybe your team didn’t provide enough detailed evidence regarding the duties and responsibilities of the job in question.

Whatever the reason for the RFE, it’s important that you identify where the case is lacking in evidence, whose job it is to provide it, and fix it. At Evaluation Credentials, we work with difficult RFEs every year. We can help you identify what went wrong and how to fix it. For a free review of your case visit EvaluationCredentials.com. ¬†We will get back to you in 48 hours or less.