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.
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