With the increase of Request For Evidences (RFEs) and denials that were issued by USCIS in the 2018 cap filings, petitioners must take a more proactive approach to filing, and should not file H-1B cases as they did in the past. We are utilizing new legal strategies to file proactively and address potential issues as raised during the 2018 cap season. By doing so, we are strengthening cases upfront, with the goal to minimize the number of RFE inquiries.
When USCIS reviews a case and finds that evidence is lacking, USCIS may issue a RFE, requesting the missing evidence. Many of the RFEs issued in 2018 were 10 to 15 pages long and required a great deal of effort on behalf of petitioners to address.
Once a petitioner responds to the RFE, USCIS issues an approval or denial, based on a review of the RFE materials submitted. It is critical to understand the RFEs that were issued in the 2018 cap season and address them in the 2019 filings to avoid denials.
Below are a few examples of the strategies we are employing in 2019 to address one of the most prevalent RFE issues of the past year – whether a job is in a Specialty Occupation. In other words, USCIS is questioning whether the offer position requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation.
Here are the TOP 5 strategies we are using this 2019 cap season:
1. Select appropriate SOC codes – make sure that the job duties reflect the correct and appropriate SOC code in the LCA. This involves strategy and discussion between your legal and HR teams, as it involves an analysis of the job duties compared to certain occupations that qualify as Specialty Occupation. Also, certain occupations that may normally be problematic as Specialty Occupations, may qualify as a Specialty Occupation, if handled appropriately at the filing stage.
2. Obtain Specialty Occupation Opinions / Industry Opinions DURING FILING –identify employees or colleagues who have significant experience in the relevant field, and work with your attorney to determine whether they qualify as industry expert, and have them write an opinion as to why the job is a Specialty Occupation. We provide the experts with samples and have a training session for them in opinion writing. Using a known person costs little to no money (if needed, a professor’s opinion can be obtained if there is still a RFE issued) and USCIS may accept this industry opinion at filing stage, thereby preventing a Specialty Occupation RFE.