Tis the season to file for one of the most popular visa types: The H-1B visa. Filings for cap-subject petitions will begin to be accepted by USCIS beginning April 2nd and the filing period will end on April 6, 2018. As many of you know, the odds of being selected in the H-1B visa lottery are slim, but even those who are selected in the visa lottery have to overcome yet another hurdle, the Request for Evidence. Since President Trump issued the executive order “Buy American, Hire American,” the United States Citizenship and Immigration Services (USCIS) began scrutinizing the adjudication of H-1B visa applications more closely.
Our attorneys witnessed this phenomenon first hand. The volume of requests for evidence increased significantly and USCIS began to be more demanding in the types of documentation requested to qualify for the program.
For this reason, we advise our clients and readers to be very careful this H-1B season and be mindful of the challenges they may face as they proceed with the H-1B visa process.
Common Types of RFE’s and how to avoid them:
- Level One Wage: Executive Order “Buy American, Hire American” directs the Department of State to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. USCIS has increasingly issued RFEs in which the employer is paying the H-1B worker a level 1 wage. This has prompted USCIS to question why someone with a specialty occupation would be paid the level 1 wage, a wage that is typically reserved for entry-level positions and individuals who only have a basic understanding of the occupation. Thus, it would not be appropriate for someone who has an intermediate to advanced understanding of the occupation to be paid a level 1 wage. Situations in which a level 1 wage is inappropriate also include cases where the worker will take on a complex set of job duties.
Tip: Employers who wish to petition for an intermediate to advanced employee or an employee who has skills that surpass those of someone with a basic understanding of the occupation, should consider paying the worker a level 2 wage or higher. Employers should also consider paying a level 2 wage for entry level workers especially if they have done so in the past.
- Proving that the position is a specialty occupation: Less common but still prevalent are RFEs issued because a university degree is not required for the position offered. It is difficult to prove that an occupation is a “specialty occupation” where a university degree is not required for the type of position requested.
Degrees Unrelated to the Position: Other cases where an RFE is prevalent is in situations where the U.S. degree is unrelated to the beneficiary’s position, where the equivalent foreign degree is unrelated to the position, or the combination of degree and work experience does not qualify the beneficiary for the position.
Tip: Discuss your job duties, experience, and set of skills related to the occupation closely with your attorney to discuss stronger categories that may be available. The H-1B visa may not be appropriate if your occupation is not one that requires a university degree, or where your foreign degree is unrelated to the position, and the beneficiary does not have adequate work experience.
- OPT EAD Students: F-1 students on OPT must maintain his or her status and the practical training must be related to the degree. Failure to maintain your status may result in the denial of your application.
Tip: If you are a student on OPT talk to your attorney to determine whether you have been properly maintaining your status.
- Inadequate Job Descriptions: RFEs are also issued where the applicant has not provided a sufficiently detailed job description describing the duties of the H-1B worker, including percentages of the time that will be spent on each duty. Failure to be as detailed as possible will usually result in the issuance of an RFE. Organizational charts should be included to show where the applicant is positioned within the company.
- Weak Evidence to Support the Specialty Occupation: RFEs are also issued in cases where the applicant has not provided detailed information about the company operation, company materials, marketing material and financial information regarding the business. Photos of the business, copies of the lease, and payroll records, are extremely helpful.
Tip: Bolster evidence, especially in cases where the employer has extensive work experience, with detailed expert opinion letters, ensuring that the expert has analyzed the applicant’s job duties and is familiar with the company’s operations.
- Employer Practices: Petitioners who are currently employing, or previously employed an H-1B worker in the past for a specialty occupation that required at least a U.S. Bachelor’s Degree or equivalent, should include payroll evidence with the H-1B filing.
In addition, if the employer is currently advertising or previously advertised for the position and required at least a Bachelor’s degree, the employer should include copies of those ads.
- Right to Control: The Petitioner must have the “right to control” the beneficiary including in situations where the worker will be employed at an offsite location.
- Market Research Analysts and Management Positions: Market Research Analysts have come under increasing scrutiny. Market Research Analysts should include a business plan with the H-1B filing to avoid an RFE and a level 2 wage may be considered. Other categories that have been scrutinized are the management categories including general managers and lodging managers. These petitions are typically approved if the beneficiary will be working for a large company and has a complex set of job duties.
For more information on the H-1B visa please click here.