- Hui Zeng, Esq.
H-1B Wikipedia and RFE Case Study
Abstract: We believe that many of the applicants have heard about the strictness of H-1B applications in recent years and many have received requests for evidence (“RFE”). Under the strict immigration policy, how do you deal with and respond to the USCIS? Click to see the full article by attorney Hui Zeng on the H-1B application! Are you ready to apply now?
Since President Trump took office, the standards of handling cases by the USCIS have become more stringent. Today, Hui Zeng, managing partner of Zeng Law Group, PLLC in New York and a member of the American Immigration Lawyers Association (AILA), has made a comprehensive summary in response to the H-1B application.
Two major points to pay attention to:
l Why did the USCIS start issuing RFE notices to a vast majority of applicants? Why has the evaluation process suddenly become much more stringent?
l What are the different types of RFE notices issued by the USCIS? How to avoid being issued RFE notices when applying for H-1B applications?
1. Why did the USCIS increase the stringency in its evaluation?
As we all know, the standards of evaluating and reviewing the H-1B cases by USCIS are becoming more precise. This is mainly affected by the following two policies:
1) On March 31, 2017, the USCIS issued a memorandum: Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions”
This memorandum states:
“An entry-level computer programmer position would not generally qualify as a position in a specialty occupation”. In the evaluation of H-1B, the emphasis should be placed on the requirement of "specialty occupations", that is, the minimum entry requirement for this position must be "obtaining a 4 years bachelor's degree or higher".
Attorney Zeng: H-1B cases filed for the position of computer programmer applicants, even software developer, application developer, etc., have received the RFE, which is based on the policy set forth by the USCIS to increase the stringency in evaluating H-1B applications for computer programming and closely related position.
Officers should consider the salary level offered by the employer as one of the factors to prove the complexity of the position to meet the H-1B requirements.
Attorney Zeng: The new Level 1 RFE notice is based on this point.
2) On April 28, 2017, President Trump issued an executive order: Buy American and Hire Americans.
President Trump reiterated his promise of "America First" made during the election campaign and called for the reform of the H-1B worker visa. H-1B visas should be issued to high-tech and high-paid employees.
Attorney Zeng: Many RFEs issued to liberal arts positions, level 1 positions, and small companies are based on this point.
2. What are the common types of Request for Evidence (RFE)?
Our firm has an extensive and rich experience representing clients in H-1B applications. Our team of attorneys maintains a channel of transparent communication with our clients. This year, only a small percentage of our clients have received RFE notices.
Given our credibility and solid legal experience, many clients have chosen to transfer their cases to our office so that we could assist and guide them through the process of RFE.
Based on our own experience assisting the clients through the RFE process, we have summarized the common types of RFE notices in the following:
RFE 1: Specialty Occupation
This is the most common type of RFE this year. The applicants need to prove that the position is a specialty occupation which 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 for entry into the occupation in the United States.
The positions that received the specialty occupation RFE this year included but were not limited to Market Research Analyst, Computer Programmer, Interior Designer, Social Worker, Statistical Assistant, Statistician, and Civil Engineer. Many traditional H-1B positions, such as Accountant, Attorney, Software Developer, Financial Analyst, Application Developer, and Mechanical Engineer have also received this specialty occupation RFE notices.
Real Case:
The applicant is a small equipment company with few people in the marketing department. The applied position is “Market Research Analyst”. Anyone familiar with the application process may know that this is a difficult position to be approved and prone to denial. The clients reached out to us during the phase of the RFE. We discussed with the client on the characteristics of the company and the requirements for the applied position. We instructed the clients to break down the job duties in a tabular manner, and further elaborated in details the knowledge required to perform the mentioned duties. At the same time, we assisted the client in preparing the organizational chart, reviewing similar job postings from closely related fields or companies provided by the clients, and submitting these documents and working samples to the USCIS. Simultaneously, we assisted the client in preparing and revising two expert letters and attached the relevant Case Law in the RFE response. The client opted for premium processing and the case was approved within one week.
RFE 2: Plausibility of Level 1 Wage
This is a new type of RFE this year. The applicant needs to prove that the complexity of the duties described in the H-1B application is consistent with the "level one wage" submitted in the LCA. This year, we published one of the very first articles online about Level 1 RFE Response strategies, please see “Latest News: H-1B Level 1 Wage RFE responses Wikipedia”. Up until now, all our Level 1 cases have been approved.
Real Case:
The applicant is a software company. The applied position is Software Developer. The client's attorney failed to come up with an appropriate response strategy within 2 months. Given this, the client transferred the case to our office. We carefully analyzed the company information and position information and demonstrated the rationality of Level 1 from the perspective of immigration law. At the same time, we also cited laws to refute whether the USCIS has the right to adjudicate Level 1. The client opted for premium processing and submitted the RFE. The case was approved within one week.
RFE 3: Specialty Occupation + Level 1 Wage
This year, many clients received one RFE requesting evidence for two areas: Specialty Occupation and Level 1 Wage.
Real Case:
The applicant is a dental equipment company. The applied position is Mechanical Engineer. The client reached out to us in the RFE phase. We discussed with the client and explored the uniqueness of the position. From the standing point of SO and Level 1, we cited immigration laws and precedents, focusing on the legal fact that Level 1 is irrelevant to the complexity of the position. The client opted for premium processing and submitted the RFE. The case was approved within two weeks.
RFE 4: In-house Employment
Most of the in-house employment RFEs are issued to positions related to computer programming. The USCIS mainly questioned whether the employee would work in-house at the company instead of being sent to other 3rd-party places. In 2017, notices as such were also issued to other positions, such as financial analysts, interior designers, mechanical engineers, etc.
Real Case:
The applicant is a large multinational electronic payment company, ranked as the top five in the industry. To protect the client’s privacy and avoid unnecessary speculation, the position was just subtly described as IT-related. The client reached out to us in the RFE phase, which was less than twenty days before the deadline. With the H-1B employees still in China, we contacted the employer and confirmed the employee’s daily responsibility and work location and provided a total of 456 pages of evidence to prove the client’s work location. The case was approved within one month without applying for premium processing.
RFE 5: Employer-employee relationship
An H-1B application is based on a real employment relationship. In an IT Consulting company, we often see situations of H-1B employees staying in the end-client company. The USCIS would assume that there is a contractual relationship between the employer and the H-1B employee.
Real Case:
The applicant is an IT Consulting company located in New Jersey. We provided more than 300 pages of evidence, including organization chart, employment contract, and employment arrangement, and explained to the USCIS in detail the employer’s actual overseeing/supervisory capacity over the foreign employees. The case was approved within 2 months without applying for premium processing.
RFE 6: Maintenance of Status
The trend in recent years is that most of the students who use CPT will be required to prove their maintenance of status as well as plausibility/legality of CPT. As of the present, the two schools beginning with the letter H and G have received the most RFE notices.
Real Case:
The employee worked under the CPT status while studying at G school. The Client reached out to us in the RFE phase. We provided evidence to prove the relevance of duties performed under the CPT status to the curriculum and the plausibility and legitimacy of CPT. The case was successfully approved.
Tip: We will publish an article on CPT related RFE soon. Please subscribe to our WeChat official account and read this article.
RFE 7: Beneficiary Qualifications
In today's job market, it is not easy to find a job, and landing a specialty position is even more difficult. The USCIS would often issue RFE requesting proof that the H-1B employee’s education degree is relevant to the position applied.
Real Case:
The applicant is an education company. The beneficiary studied the physics doctorate. The position is an Instructional Coordinator. Under the pessimistic employment environment, this is the only company the beneficiary found willing to sponsor the work visa. The USCIS issued an RFE arguing that the beneficiary's specialty does not meet the professional requirements of the position, and the Instructional Coordinator position can only be fulfilled by graduates majoring in education, and the beneficiaries with a Physics degree should work in the laboratory.
In our response, we analyzed in detail the various professional courses, previous work experience, and professional training completed by the beneficiary, and explained to the USCIS that knowledge stays the same along with expert letters, therefore proving the degree of H-1B employee is qualified for this job. The case was approved within 2 months without applying for premium processing.
RFE 8: Availability of Work
This type of RFE often occurs in small or start-up companies. The USCIS will consider whether the company has enough work to provide to the beneficiaries to meet the three-year H-1B requirement. The major concern for the USCIS is that before the employees complete the 3 years requirement of H-1B, the company will close down or lay off employees due to a lack of work.
Real Case:
The applicant is the education company mentioned in RFE 7. The company was established in January 2017 with just a few employees, and the net income is negative. In the RFE phase, we provided a list of documents to prove that the company’s needs for professional recruitment and the company has enough professional work for the recruited beneficiaries. As of now, the company is operating steadily with optimistic prospects in the future. The case was approved within 2 weeks without applying for premium processing.
RFE 9: Other RFEs and Notices
The USCIS sometimes would issue RFE notices concerning the Company's Address, Licensing Requirement, etc. The difficulty concerning these types of RFE is relatively low, therefore we will not elaborate on them one by one here.
Of course, we must not panic too much because of the escalated stringency for RFEs in recent years. There is a parable saying that you experience it by first going through it. The path of the H-1B application is bound to be full of thorns and bushes, however, we assure everyone a safe arrival to the destination with our extensive practical field experience.
We are a team of professional, reliable, and trustworthy legal experts. You are in good hands!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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