Over the past few years, H-1B RFEs for specialty occupation issues have spiked in frequency. Jobs that never ran into trouble in the past – like engineer or software developer – have quickly become RFE magnets.
This next filing season, we expect a very small number of RFEs because in September 2018, USCIS issues a memorandum giving adjudicators the authority and encouragement to reject petitions outright without first issuing an RFE for clarification. That means, any steps that would be taken to answer an RFE must be completed when filing the initial petition.
Expert opinion letters were successful in overturning specialty occupation RFEs last season.
One beneficiary who contacted us with an H-1B RFE for specialty occupation had applied for the visa with the job of software developer at Wage Level 2. He met H-1B educational qualifications, but CIS took issue with whether his job did. CIS requires a specialty occupation to require a minimum of a US bachelor's degree or its equivalent for entry into the position. The assumption that the wage level was set too low for someone with the educational qualifications necessary to be a specialty occupation professional.
There are a multitude of factors that go into determining a wage level, including the employee's past work experience – which in this case was very little because he had recently graduated from college – and the level of supervision required – which in this case was very high to begin with for the same reason. One of the main reasons for the development of the H-1B program is to attract foreign students to US colleges by offering them to ability to stay in the US after graduation with under H-1B status to work specialty occupations. Now H-1B beneficiaries in this exact situation are having issues getting their visas approved.
We answered this RFE with an expert opinion letter explaining why this job met CIS specialty occupation requirements, and analyzing all of the factors that went into setting the wage level. CIS accepting this response and approved our client's H-1B visa.
Last year, we were able to get the RFE overturned. This year, there will likely not be an RFE to overturn. Denials are not impossible to overturn, but they are much more difficult to work with. The solution is to submit an expert opinion letter right away with the initial petition to prevent a specialty occupation issue that blocks visa approval.
For a free review of your case, visit here or simply reply to this email. We will get back to you in 48 hours or less.
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