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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.
Last year, we saw an unprecedented number of RFEs targeting computer programmers making level 1 wages. These RFEs questioned whether this job met H1B specialization requirements, which states a specialty occupation requires a minimum of a US bachelors degree or higher or its equivalent for entry into the position.
- CIS assumes that because the job is set at level 1 wages it is entry level.
- According to the US Department of Labor’s Occupational Outlook Handbook entry level computer programmers are sometimes hired with only a US associates degree, which falls short of H1B educational requirements for a specialty occupation.
This RFE was based on two misconceptions. First, just because a job is set at level 1 wages doesn’t mean it’s entry level. Determining the wage level for any given position is complex, involving a great number of factors. Second, while some employers will hire entry level programmers with only an associate’s degree, this is the exception for the position, not the norm. The exception should not make the rule for determining whether an entire occupation meets specialization requirements.
While this job got the most grief last season, any job can be met with a specialty occupation RFE. To answer this RFE, you need to know the job in question inside and out, far better than CIS does. That means knowing the passage in the Occupational Outlook Handbook, having the ad for the job documented that shows its minimum educational requirements, and having documentation of the requirements for similar jobs in similar companies in the industry. You also need documentation of the employer’s past hiring practices with regards to educational requirements for this job.
If this job is uniquely specialized and requires an advanced degree to perform its duties even though similar jobs in similar companies in the industry don’t require an advanced degree, you will need to clearly and thoroughly explain why this is the case. Both the employer and an expert who can add weight to the argument with an expert opinion letter need to offer detailed explanations.
If you, or your employee or client receives a specialty occupation RFE, you will need an expert opinion letter to fortify your case. We have experts on hand with the highest rate of success in answering these RFEs. For a free review of your case, visit evaluationcredentials.com. We will get back to you in 48 hours or less.
The short answer is, you will need expert help.
The triple RFE combines the Nightmare RFE – which is virtually impossible to answer in time by its own instructions – the level 1 wages RFE, and the specialty occupation RFE all into one big giant headache.
To answer this, you will need to first justify that the wage level is correct for the job, meaning that the H1B employee will be paid the prevailing wages and benefits for that position, in that industry, in similar sized companies in that geographical area. Second, you will need to show that the job meets H1B specialization requirements, and third, you will need to show that the beneficiary meets the educational requirements for the specialty occupation.
To answer the first two, you will need to include an expert opinion letter that explains how wage levels work for that position, and that explains why this particular position meets specialty occupation requirements. You don’t need to order two separate letters for this, at Evaluation Credentials we have experts available 24/7 with the highest rate of success in answering these RFEs, and they can do it in just one letter.
For the third component, you, or your client or employee will need a credential evaluation that clearly shows that they meet educational requirements for the H1B job. For a job to be a specialty occupation, entry into that position must require a minimum of a US bachelor’s degree in the field. That means you need to show that you have, or your employee or client has a US bachelor’s degree in that exact field, or its equivalent. At Evaluation Credentials, we keep one eye on the education and the other on CIS approval trends, which change every year. Writing the correct evaluation means knowing the education, the job, and what CIS will and will not accept as proof of equivalency.
In answering any difficult RFE, the answer is to not get bogged down in the wording, but rather go back to the original eligibility requirements and see where your case, or your client or employee’s case is lacking in meeting them, and to seek expert help.
For a no-charge and no-obligation review of your case, or your employee or client’s case, visit EvaluationCredentials.com. We will get back to you in 48 hours or less with a full analysis and our recommendations.