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Who is to Blame for Your H1B RFE?

As foreign credential evaluators who specialize in handling RFEs and denials, we are constantly evaluating USCIS policy and trends. Just like last year and the year before, this year we have seen more H1B RFEs than we ever have in the past. When CIS issues an RFE, much concern and angst arises. A lot is at stake with Visa approval, so getting to this point in the process only to find more is being asked of you is a lot to stomach. Employers look to the attorneys, attorneys look to evaluators, and candidates panic.

But whose fault is it REALLY and why does it matter whose fault it is anyway?

True, sometimes it is the attorney or evaluators fault, but sometimes it is CIS’s fault.

Sometimes it is the fault of the evaluation but not the evaluator.

Sometimes it is CIS’s fault.

Sometimes it is the candidate’s fault.

Sometimes it is no one’s fault at all.

It matters because there is absolutely no reason to get a new attorney or a new evaluator at this stage of the process if the RFE was not their fault.

The first step to successfully responding to an RFE is to understand what is being asked for, and of whom is it being asked, and which party can provide the necessary evidence. Knowing who is at fault for the RFE is a big part of understanding how to move forward.

When is it the attorney’s fault?

Very rarely, an attorney will file an application incorrectly. Generally, however, the attorney error occurs when the candidate’s education is not reviewed by an education specialist before the application is filed. In this case, the candidate’s account of their education and experience is incorrect or does not meet the CIS requirements for the H1-B. Unless this is the case, don’t fire your attorney over an RFE.

When is it the evaluator’s fault, and how can it be the fault of the evaluation but NOT the person who wrote the evaluation?

There are situations when the RFE is clearly the evaluator’s fault because the evaluation was done incorrectly. For example, when a non-accredited PGD is listed as accredited, CIS jumps on that inaccuracy to issue an RFE.   This rarely happens, because most evaluators are highly trained in spotting unaccredited education.

However, every evaluation is different, and evaluations for different Visas must be written very differently. When an evaluator writes an evaluation for any particular visa, he or she needs to know both the Visa regulations AND current CIS trends. Not every evaluation agency is aware of the Visa regulations. The evaluator may have provided the evaluation ordered by the client, only to find that the equivalence does not work for the particular Visa. For example, if you have a four-year degree in electrical engineering, you can receive an evaluation written correctly showing an equivalency to a US bachelor’s degree in electrical engineering, but then receive an RFE anyway because your job is in the field of computer software analysis. This sort of mismatch triggered an onslaught of RFEs this year. The evaluator did a good job, but the evaluation was not correct for the purposes of the Visa. In this case, you may have likely found the right evaluator, but he or she provided you with the wrong evaluation even though they acted in good faith. To avoid this, make sure you order your evaluation from an agency that knows education regulations for each Visa. If you advise an evaluation agency that you need an evaluation for an H1-B visa and they don’t ask about the job offer, find a new agency. The degree must precisely fit the field of employment for this Visa and the evaluator needs to know this information so they can evaluate an equivalency to the proper degree. If you are not asked about the job offer, the agency does not look at the Visa regulations and is not right for this job.

If you have already paid an evaluator and a mistake was made, I suggest you go back to that evaluator to try to address your RFE. However, if the evaluation agency did not make sure that the evaluation was written for the particular Visa it was ordered for, that may just be how they operate. There is nothing wrong with that unless they lead you to believe that they evaluate for immigration and meet Visa requirements as part of their service. They may just be writing standard evaluations and not be authorized to make the conversions from work experience to education, which is necessary to prove equivalency between fields or across educational system structures. You cannot expect an agency to do something they don’t claim to do. So the evaluation agency you want and need is one that will look at the education, as well as the visa requirements and current CIS trends.

When is it CIS’s fault?

Government bureaucracies make mistakes and some RFEs are simply factually incorrect. Everything in a petition could be done correctly and you can still receive an RFE. Often when CIS is at fault, the RFE will state that an accredited university is not accredited, or that a qualified evaluator is not qualified. While these RFEs are frustrating, they are usually also easy fixes. With the help of your evaluator, you can easily provide these facts and receive an approval.

When is it the Candidate’s Fault?

Yes, you make mistakes too. Candidates have been known to insist that their high school documents are college level or that unaccredited education is accredited. They have also been known to provide poorly translated documents, or even fraudulently translated documents. Generally, a good evaluator can pick up on these problems before starting in on the evaluation, but not all evaluation agencies will review a candidate’s case before accepting payment and writing it. To be sure that no problems arise further down the road that can trigger an RFE, we always review all of the documents before accepting a credential evaluation order. Before we have seen all of your education documents, a resume, and the RFE or Denial if one has been issued, we have no way to discuss your case. We want to discover any issues in the documents right away in order to eliminate the vast majority of the confusion and misinformation you may experience down the road.

When is it no one’s fault?

Sometimes, it really is no one’s fault. CIS trends change. As we have seen especially in the past seven or so years, CIS trends can change very quickly. We can only know what they generally do and what they have done in the past, which helps a great deal. CIS can be a wildcard, and no one can guarantee what they are going to do. When this happens, all you can do is carefully read the RFE with your team, understand what is being asked of whom and who can provide the requested evidence, and then do your best to beat it.

Can we draw a usable conclusion?

Yes. The entire team should review the RFE. Your attorney, your employer, your evaluator, and, of course, you should review the RFE. An evaluator with extensive experience with RFEs could be familiar with the RFE and know how they have been resolved. Work with him or her to resolve the RFE. If you used an evaluation agency before receiving an RFE, go back to them. Next time, make sure you are working with an evaluation agency that reviews the education and Visa requirements and gives you all of your options before you order. If that is not their policy, it might be best to try a new agency. Remember that few agencies have passed through the RFE gauntlet this year unscathed, and many of these RFEs are not the fault of the agency, or the fault of the attorney or employer or you. Do your homework before you file because avoiding RFEs is far superior to resolving them.

About the Author

Sheila Danzig

Sheila Danzig is a foreign credentials evaluation expert and international education expert. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/ or call 800.771.4723. Mention that you saw this in the ILW article and get 72 hour rush service at no charge.

 

5 Signs You’ve Found a Good Credential Evaluation Agency

More and more RFE’s are being issued inquiring into the credibility of credential evaluation agencies. Even if you’ve submitted an evaluation of your foreign degree along with the rest of your H1b petition, the USCIS may have questions about how reliable the agency that made the conversions is, and whether or not they actually have the authority to make the conversions they did.

Not all evaluation agencies have international education experts and professors on hand to write the detailed evaluation you need to prove the value of your education in terms of US standards. Not all agencies are authorized to convert classroom contact hours and years of work experience into the college credit you need to bridge the gaps between the US academic system structure and that of the country in which you earned your degree.

Just like any other kind of business, agency, or professional, some credential evaluation agencies are quality and reliable while others are not. Here are five signs that you’ve found a good one:

  1. They answer when you call…or text, or email. A good agency will always be there to answer your communication in whatever medium you prefer. A great agency is ALWAYS available because they know the time crunches involved in the petition process.
  1. They have satisfied customers. NEVER order an evaluation without asking for past client references and following up on them. Search for and read reviews and read client testimonials. If past customers are satisfied, chances are you will be too.
  1. They offer you options. Reliable agencies have a wide range of options. This is because experience working with visa applicants has taught them the last minute really does mean the last minute when it comes to getting your petition in, or your RFE answered. They should offer a variety of rush delivery options at reasonable rates.
  1. They’re inexpensive. This is NOT one of those things where you get what you pay for. In fact, an expensive evaluation is a big red flag. Reliable agencies don’t have to squeeze as much cash as they can out of every client they get. Furthermore, reliable agencies understand how costly it is to petition for an H1b visa and their prices will reflect an understanding of and respect for your budget. Save your money and get a credible evaluation.
  1. They are a pleasure to talk to. A good conversation – whether it be over the phone, or by text or email – is a great indicator that you have found a good credential evaluation agency. This is because it shows that you are comfortable working with them, they are able to answer your questions to your satisfaction, and that they are confident in the work they do.

If you see these five signs when you research which agency to order your evaluation from, you have likely found a reliable credential evaluator who can write you the evaluation you need to get your visa approved.

How to Avoid the RFE Explosion

In the past six or so years, we’ve seen an explosion in Requests for Evidence in response to H1B petitions. Just less than a decade ago only about 4% of all H1B petitions were met with RFE’s while today we’re seeing 25%. One of the main reasons this is happening is because the USCIS is getting flooded with more H1B petitions than they know what to do with every year. With the growing number of STEM industry jobs requiring highly skilled workers, US companies are hiring foreign workers and applying for as many H1B visas as they can. The rate of acceptance is low. Even companies like Microsoft will only be approved for around half of the petitions they submit.

Another reason for the increased number of RFE’s is because the USCIS and your boss have different standards by which to judge your qualifications. While most employers will hire workers with degrees in the fields related to their job, the USCIS won’t approve their visas. The USCIS has recently tightened its standards to only accept applicants whose degree matches their field of employ exactly. Because these standards are new and because they differ from your employer to the government, many of these petitions are now met with RFE’s or worse.

Don’t panic if this is the situation you’re in. You can fix this before it even becomes a problem. All you have to do is submit a credential evaluation along with your educational documents written by an evaluator with the authority to convert work experience into college credit hours. That way, your work experience in the field can be counted towards your degree specialized in the field of your job. Not all credential evaluation agencies have evaluators on hand with this authority, so be sure to check before ordering your evaluation.

Before the USCIS has to ask you about your education, spell it out clearly for them and avoid a pesky RFE.

Degree Mill Empire Busted

Axact, a highly respected company based in Pakistan with over 2,000 employees was recently exposed as a prolific degree mill empire with 370 fake university and college websites. What is a degree mill? A degree mill sells fraudulent academic degrees and diplomas. People will buy fake degrees and the paperwork that goes along with it to falsely show that they earned a degree. Sometimes the fake degrees will come from schools that are completely fabricated. Other times, a real school’s name will be used but the degree and transcripts will be false.

Most people who patronize these sites purchase fraudulent degrees on purpose. However, sometimes people are duped by the websites of fake schools these mills use to churn out degrees. Websites for these schools are purposefully misleading, touting names like “Columbiana University” or “Barkley University.” People seeking international education or to study abroad are particularly at risk for falling victim to this fraud. On the same note, companies that tend to hire foreign workers are also at heightened risk of hiring people with fake degrees because there are so many schools in so many countries with different educational systems and customs.

The solution is NOT to just stop hiring foreign workers or to never live abroad for school. There are too many opportunities in the increasingly global job market to shut yourself and your business off from opportunity just to protect yourself from the possibility of falling victim to degree mills. Going to school abroad will give you an international perspective that will give you a competitive edge in the job market. You will learn new languages and cultures. Hiring foreign workers will allow your company to gain an international and multicultural perspective, and give you the ability to choose from the best and brightest potential hires from around the world.

So how can you protect yourself and your business from hiring people with false credentials?

First, make sure the college or university the alleged degree was earned at actually exists. If it does exist, double check to make sure the program the degree was earned in actually exists. If either the school or the program doesn’t exist, the degree can’t be real.

Second, take a detailed look at the timeframes expressed in your potential hire’s application. If they completed a bachelor’s degree BEFORE their high school degree, you may have a fake on your hands.

Building Your H-1B Visa Team

The road to getting your H-1B visa approved is a multi-step process involving three government bureaucracies, your employer and you. The reason for the many steps and different agencies is to ensure the information you submit is consistent. If you submit one petition with different information than another, or with information differing from a transcript, resume, or other required document, it raises a big red flag. For this reason, you and your employer need to work together and be very organized. Make copies of each of the petitions you submit and cross reference them before filing subsequent petitions. Triple-check your answers before filing to make sure all of the information matches. Even misspellings can be met with an RFE you will then have to deal with.

Your H-1B process is a team effort between you and your employer. You will not be a direct part of every step of the process, but it’s important for you to know what’s going on so you can do your part to get all of the documentation and evidence together on time.

After you are approved for hire for your specialty occupation, your employer must submit a Labor Conditions Application to the Department of Labor to prove they meet standard working conditions and can pay you prevailing wages and benefits. This application is for your safety. If they don’t meet labor standards, you don’t want to be working for them anyway. If they can’t pay you fairly for your work, you don’t want to be working for them anyway. If the company isn’t economically viable, you don’t want to be working for them anyway.

Once this application is approved, you and your employer must arrange and file an I-129 petition with the Department of Homeland Security. This petition must provide evidence to prove that your job is a specialty occupation requiring a US bachelor’s degree or its equivalent or higher to carry out the tasks of the job. To do this, your employer has to show that industry standards require a specialized degree as a minimum qualification for your job. That means similar companies have the same requirements of employees filling similar positions. Along with this evidence, you also must prove you meet these requirements by submitting your transcripts and diplomas. If your specialized degree is from outside of the United States, you will have to take an extra step to prove the value of your education in terms of US standards by submitted a detailed evaluation of your credentials from an authorized credential evaluation agency. This evaluation will clearly show the academic content and value of your degree in terms of US education standards.

Once your I-129 is approved, you can start in on your H-1B petition with the Department of State. This final petition must clearly prove that you, your employer, and your job meet all of the H-1B visa requirements.

A detail-oriented team effort is required to get your visa approved. Work together with your employer, always keep the lines of communication open, and ALWAYS check over your petitions thoroughly before filing.

National Day Laborer Organization Network and United Methodist Church Protest Deportations at White House

Earlier this month, the National Day Laborer Organization Network petitioned Obama to extend his Deferred Action for childhood Arrivals (DACA) program to “the fullest extent permissible by law.”  The petition also requested the suspension of deportations of individuals who would likely benefit from future immigration reform legislation.  Congressional Democrats have also raised the issue with Obama to extend DACA to include family members of the young people who qualify and to working immigrants to allow them to qualify to stay in the country legally under visas.

DACA, a program created a bit over a year ago by the Obama administration has made it possible for hundreds of thousands of applicants to stay in the United States legally under two-year visas.  People under the age of 30 who were brought into the United States as children, have completed or are currently enrolled in high school and/or college in the United States, and have not left the country recently or committed serious crimes currently qualify for DACA.

On President’s Day, the United Methodist Church and the National Day Laborer Organizing Network organized a protest attended by over 50 people.  Religious leaders, immigrants, and supporters gathered in Lafayette Park across the street from the White House to sing songs and hold signs protesting Obama’s deportation policy which has caused 2 million people to be deported in the five years he has been in office.  By comparison, 2 million people were deported in the full eight years George Bush was in office.  After three warnings, police began to make arrests.

Obama stresses that there is only so much he can do to extend this program and enact immigration reform without congressional approval, urging members of Congress to continue to push for immigration legislation.

Source: Delmore, Erin.  “Immigration protest sparks arrest outside White House,” MSNBC.  February 17, 2014.  http://www.msnbc.com/all/activists-arrested-outside-white-house

Rep. Nancy Pelosi Differentiates “Between what is a reason and what is an excuse.”

House Republicans are internally divided on how or whether to move forward on immigration reform legislation.  While most embrace moving forward on reform step-by-step in a piecemeal process that ultimately sorts out immigration legislation, some have embraced comprehensive immigration reform while others refuse to move forward altogether.  In consequence, House Republicans have opted to attempt to delay passing legislation until 2017.

House Speaker John Boeher explained, “There’s widespread doubt about whether this administration can be trusted to enforce out laws, and it’s going to be difficult to move on any immigration legislation until that changes.”

While the GOP claims the Obama administration cannot be trusted to enforce immigration laws, including their priority of tightening border security, deportations have hit record highs during this administration showing that he will carry out legislation even if he doesn’t agree with all of it.  Unfortunately House Republicans have omitted what President Obama could do to win back their trust and are skeptical of whether or not they’ll be able to trust the next administration in 2017 either.

“That’s not a reason to not do an immigration bill, that’s an excuse not to do it, and around here, you have to always differentiate between what is a reason and what is an excuse,” House Minority Leader Nancy Pelosi responded to the House GOP’s announcement.  She explained that the United States government is built on a series of checks and balances to address issues of distrust and inability to carry out one’s duties appropriately.  “We’re the first in the Constitution–the legislative branch.  And what we’re supposed to do it legislate, and not make up excuses as to why we don’t,” said Rep. Pelosi.

Source: Siddiqui, Sabrina.  “Nancy Pelosi: If GOP Can’t Trust Obama on Immigration, Congress Should ‘Pack Up And Go Home,” Huffington Post.  February 6, 2014.  http://www.huffingtonpost.com/2014/02/06/nancy-pelosi-immigration-reform_n_4739705.html

Vague Immigration Standards put forth by House Republicans

House Republicans unveiled an immigration reform plan outlining the standards they assert must be met for them to be willing to pass immigration reform legislation.  This plan, however, is not actually a plan.  It vaguely outlines points and principles leaving much vagueness and ambiguity around what their standards actually are, and does not set forth an actual plan, or even promise of a bill.

Their outline does embrace the ideals of the DREAM Act, including citizenship opportunities for minors and young undocumented immigrants who were brought illegally into the United States as children.  It also mentions creating avenues for adults living in the United States illegally to live and work in the country legally without threat of deportation.  They mention that they would support a comprehensive immigration package to provide many of the 11.7 million people living in the United States illegally pathways to stay here without fear of deportation.

However, they also insist that border security “must come first,” and that pathways to legalization cannot “happen before specific enforcement triggers have been implemented.”  The problem is, like many other terms and principles put forth in the House Republican outline, “specific enforcement triggers” are undefined and may be used to stave off completion of comprehensive immigration reform.  Legislation is defined by the details and the details in this outline are left vague and undefined.

The Republican immigration reform plan is a whole 858 words written on one page.  After rejecting immigration reform legislation negotiated across the isle and passed with bipartisan support, and support from religious, labor and business leaders in the Senate in 2013, House Republicans wrote up negotiated amongst themselves to outline their standards for agreeing to vote on immigration reform legislation.  In the words of Republican House Speaker John Boehner, “These standards are as far as we are willing to go.”

Unfortunately, these hard standards can only be so hard when they are vague.  Another example are the “special pathways,” to citizenship, another term left undefined in the Republican’s outline.  They write, “There will be no special pathway to citizenship” for undocumented immigrant adults, even though they could be eligible to legally stay in the country to live and work.

The upside to a vague and undefined outline of hard limits is that it leaves wiggle room for bipartisan negotiation.

Source: Benen, Steve.  “House GOP outlines immigration principles,” MSNBC.  January 31, 2014.  http://www.msnbc.com/rachel-maddow-show/house-gop-outlines-immigration-principles

Deferred Action for Childhood Arrivals Pretests Readiness for Widespread Immigration Reform

The Deferred Action for Childhood Arrivals (DACA) program, authorized by President Obama in June of 2012 has turned out to be a much-needed testing grounds for what changes need to be made to carry out broader immigration reform.  Political sciences assistant professor of University of California San Diego and researcher of DACA Tom Wong explains, “DACA represents an important trial run for a larger legalization process.”

Since DACA was announced, about 75% of all applicants have been accepted to remain in the United States.  An estimated 1.7 million undocumented immigrants qualified for this program which is open to immigrants ages 15-30 with high school diplomas, GEDs, or are enrolled in US schools, who have not left the country since June of 2007, and have not committed any serious crimes.  As was to be expected, they came forward and applied in enormous numbers.  What wasn’t expected was where they would all come from.

States like California, Texas, New York, and Illinois have the highest number of Mexican immigrants.  However, these assumptions created hiccups in the DACA process.  While these states had the most Mexican immigrants, serving immigrants from countries besides Mexico–especially immigrants who couldn’t speak English or Spanish–needs a lot more work and a lot more resources and local organizations to support these applicants.  Also, the states with the most applicants turned out to be none of the top states populated with Mexican immigrants.  Georgia, North Carolina, and Indiana were the states with the most applicants and underestimations of the traffic they would receive caused many a hiccup.

Another important aspect of DACA that needed some streamlining was specifying which documents were acceptable for proving continuous residence.  Since employers are wary of documenting illegal workers, people were bringing forth hospital bills, social media documentation, and utility bills.  It has since been made clear that utility bills and hospital bills will be accepted.  The school systems in these states have also been flooded with transcript requests.

All of these hold-ups have created bottlenecks in the process that have lead to long turn-around times, during which applicants have gotten deported, visas have run out, and lives have been torn apart.  At the same time, these applicants are educated, responsible members of the United States’ population and loosing them due to lengthy application processing time is not in our best interest.

In the first sixty days since DACA was announced, almost 600,000 people applied.  This has not slowed down.  Hopefully we can learn how to streamline application and turn around, as well as best serving all applicants and supporting the communities that will have to scramble for transcripts and utilities bills, from the challenges, surprises, and hiccups of DACA moving forward into broader immigration reform.

Source: Wides-Munoz, Laura.  “Immigration Reform Gets Broader Lessons from Deferred Action,” Huffington Post.  November 17th, 2013.  http://www.huffingtonpost.com/2013/11/18/immigration-reform-deferred-action_n_4295563.html

 

Department of Justice Making Changes to Protect Mentally Impaired In Immigration Court

The Department of Justice is taking some much needed steps to protect cognitively impaired immigrants who end up in immigration court, unable to navigate legal proceedings.  Unlike in criminal court, defendants currently have no right to a free lawyer in immigration court.  This has resulted in people who have valid claims to remain in the United States but cannot comprehend immigration law or access their documents due to cognitive impairment or mental illness being deported to countries they barely remember of have never been to with no support.  Both documented and undocumented immigrants have met this fate which in effect has caused people to be wrongfully deported simply because they are cognitively impaired.

Currently, the Department of Justice is making policy changes to protect mentally impaired defendants in removal proceedings.  This includes providing cognitively impaired defendants with free lawyers once they have been identified as having mental impairments that render them unable to understand legal proceedings.  Controversy may rear its head because once identified, defendants with mental impairment do not have the right to refuse representation, but overall this new policy promises to save many people from wrongful deportation.

Unfortunately free lawyers for mentally impaired immigrants is only a band aid on the puzzle that effectively causes people to be deported for being mentally ill.  Even if a cognitively impaired immigrant is saved from wrongful deportation by representation, there are still statutes that trigger mandatory deportation for some petty crimes.  Since petty criminality and mental illness are generally accepted to be linked, it’s only a matter of time before the trigger goes off for these people.  Immigration reform on a federal level is still necessary to cure the roots of this problem, although reformed policy in the Department of Justice is definitely a step in the right direction.

Source: Murray-Tjan, Laura.  “Immigration Puzzle of the Week: Do We Deport People for Being Mentally Ill?” Huffington Post.  January 10, 2014. http://www.huffingtonpost.com/laura-murraytjan/immigration-mentally-ill-deportation_b_4577314.html