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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.

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