How to Make Your H-1B Visa Petition Virtually RFE/DENIAL-Proof Guest Post

The trick to making your petition RFE-proof is to go back to the basic H-1B eligibility requirements and make sure each is clearly and thoroughly evidenced.

1. Specialty Occupation

To qualify for H-1B status, the job must normally require a minimum  of  a US  bachelor’s  degree  or  higher  or its equivalent to perform. Since 2017, USCIS has illegally swapped the word normally with always when adjudicating this aspect of the  H-1B petition making  the  exception  the  norm.  To  combat  this,  applicants  must  provide  additional  evidence  that  this  particular  job  is  complex  as  to  require  the  bachelor’s  degree  minimum, and back this up with an expert opinion letter from an expert with extensive experience in the field of the H-1B job. This means providing the ad for the job and evidence of past hiring practices showing the employer always requires this minimum degree. Provide ads for the same position for other companies in the industry that show this minimum degree requirement. Write out the theoretical and practical application of specialized skills and knowledge in the duties and responsibilities of the job, and explain how these skills and  knowledge  are  gained  through  completion  of  a  bachelor’s  degree  program  in  that  major.  Including  an  expert  opinion  letter  analyzing,  discussion,  and  drawing  conclusions  based  on  this  information  is  the  finishing touch to make this aspect of the petition RFE-proof.

2. Wage Level

H-1B employees must be paid the prevailing wage for the job in that geographical location. To clearly show that  the  wage  level  is  set  correctly,  include  documentation  that  shows the  wages of  employees  working  the same position at different companies of that size in the same or similar geographic location, that have similar educational and work experience backgrounds to the applicant. Include a breakdown of all the fac-tors that went into setting the wage level as it is, including training and supervision needs. Include an expert opinion letter from someone with extensive experience working in the field of the industry of the H-1B job to validate the set wage level.

3. Education

If the beneficiary’s education is anything besides a US bachelor’s degree or a higher degree from a US institution in the EXACT major of the specialty occupation, a credential evaluation is needed to fill in the gaps. That  means  generalized  degrees,  incomplete  or  missing  college,  credentials  earned  from  unaccredited  institutions,  degrees  earned  outside  of  the  United  States,  three-year  degrees,  and  degree  majors  in  any  field but the EXACT field of the H-1B job needs a credential evaluation. This credential evaluation must be tailored to the H-1B job, H-1B eligibility requirements and USCIS approval trends, and the beneficiary’s edu-cation and work experience. This could include a detailed analysis of the course content within the earned degree. This could mean a work experience conversion in which a professor authorized to grant college credit for work experience converts three years of progressive work experience in the field of the H-1B job into one year of college credit towards a degree in that major. This could mean citing federal caselaw, USCIS precedent decisions, UNESCO binding instruments, and international education and trade regulations and guidelines.

4. Employer-Employee Relationship (include show employer viability)

To be eligible for H-1B status, the employer must be able to hire, fire, promote, and otherwise control the work the H-1B employee performs. The employer must be economically viable, and the employer must be able to show that the H-1B employee will have work for the duration of the entire three years of the H-1B visa. This means providing a copy of the employee contract along with documentation of the duties and responsibilities of the job and how employee performance is measured and enforced by the employer. For consulting firms and other contract-based employers, this means providing a complete itinerary of the H-1B employee’s work for the duration of the visa period, including clients and their contact information.

Providing this added documentation to fortify these four pillars of H-1B eligibility will make your employee or client’s case virtually RFE-proof.

To Overturn or Prevent an H1B, EB2, EB3, TN or E3 Visa RFE or DENIAL

To overturn or prevent an

T RFE or DENIAL get a free review of your case visit or simply reply to this email. Sheila Danzig will respond as quickly as possible with all of your options.