Case Study: H-1B Double RFE – Overturned!

For those selected in the H-1B lottery, it is time to start filing completed petitions.  That means it is time to anticipate likely hurdles to outright approval based on USCIS adjudication trends.

One common complex RFE we have been seeing over the past few years is the Double RFE.  We expect this one to be a common issue again this year since legislation proposing to change eligibility and selection order surrounding specialty occupation and wage level components is still on the table. 

Here is what you need to know about the Double RFE:

1. USCIS assumes that if a job is set at Level One Wages it is an entry level position.
2. If the entry level position’s entry in the US Department of Labor’s Occupational Outlook Handbook states that the position does not ALWAYS require a minimum of a US bachelor’s degree to perform, USCIS will state it does not meet Specialty Occupation requirements.

The way the RFE is structured, petitioners must defend that the H-1B beneficiary is being paid the prevailing wage, and that the job is a specialty occupation.

This situation is unfortunately common for recent college graduates who have the advanced degree but little or no work experience and thus require a higher level of training and supervision.  These are factors that play into the wage level.  Additionally, while Specialty Occupations are definitionally jobs that NORMALLY require a bachelor’s degree or higher, USCIS has been consistently adjudicating in terms of ALWAYS rather than NORMALLY effectively making the exception the rule.

Here is how we answer this RFE:

1. Include a detailed breakdown of the factors that went into setting the wage level appropriately, including documentation of prevailing wage.
2. Provide a detailed breakdown of the specialized duties and responsibilities of the job and how attainment of an advanced degree in the field of the H-1B job directly apply.
3. Provide evidence of past hiring practices showing this position requires a bachelor’s degree minimum.
4. Provide documentation of hiring practices for this position for similar employers in the industry showing the bachelor’s degree minimum requirement consistently.
5. Include an expert opinion letter written by an expert in the field of the H-1B job with extensive experience working in the field of the H-1B job, with leadership experience wherein they made hiring decisions regarding this position.  This letter should address both the wage level and the specialty occupation justifications.

At CCI TheDegreePeople.com we work with experts in every H-1B field.  Our strategy works for both preventing and answering the Double RFE.

Let us review your case for free before you file.  Visit www.ccifree.com and we will respond in four hours or less.

Sheila Danzig

Sheila Danzig is the director of CCI TheDegreePeople.com.  Sheila specializes in overturning RFEs and Denials for work visas.