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6 Tips to Reduce Your Risk for RFE when Filing Your H-1B

A man stands at a desk while coworkers work behind him.The 2017 H-1B season saw an unprecedented increase in Request for Evidence (RFE) challenges to H-1B visa petitions from the U.S. Citizenship and Immigration Services (USCIS), and there is no indication 2018 will be any different. With the filing deadline for the 2018 lottery on April 6th, it is important to learn from the 2017 season, especially if you are planning to file an H-1B employment visa on your own.

Record increase in RFEs in 2017

In 2017, the USCIS issued 85,000 RFEs between January 1st and August 31st, according to an article on immigration red tape from Reuters. The RFEs represent a 45 percent increase in challenges over the same period in 2016, a period of time that only saw a 3 percent increase in H-1B petitions.

The RFEs directly correlate to President Trump’s aggressive stance on immigration. President Trump has repeatedly called for reforms to the H-1B system  so it favors only the most highly skilled and highest paid workers. Typically, an employer can use the H-1B visa to fill specialty occupations, as long as the potential employee has a bachelor’s degree related to the specialty occupation and will be paid the prevailing wage for the position.

Entry level positions targeted in RFEs for H-1B visas

The Reuters investigation revealed that most of challenges revolved around the definition of “specialty occupation,” or argued the salary for the position should be higher. USCIS appears to be making a case that specialty positions cannot be entry-level. The USCIS position doesn’t take into consideration the vast training and technical skills required by doctors, engineers and other highly skilled workers – even for entry level posts.

The attorneys and paralegals at FordMurray have been working to ensure our H-1B applicants have the highest chance of success during their H-1B application. If you are planning on filing an H-1B application without legal representation, we recommend taking these extra precautions:

  • Clarify the job description to show highly skilled nature of the position. Supporting documentation should show why the position is not entry level in nature.
  • Make sure all the relevant documentation is present. For example, submit higher education degree WITH accompanying transcripts.
  • If possible, offer a Level 2 wages or higher for the position. USCIS appears to target “entry-level” positions as part of President’s Trump’s Buy American, Hire American initiative.
  • Research the occupation against the Occupational Outlook Handbook and O*Net, and compare with similar positions within related organizations to ensure that the position normally requires a degree in a specific field and such degree and field can be proven.
  • Ensure your LCA is certified and ALL pages are submitted.
  • DO NOT submit required forms and filing fees separately. The LCA, Forms and Checks should be submitted concurrently.

For additional information, download our complimentary 10-page H-1B Guide for Employers and Highly Skilled Workers. The H-1B filing process can be confusing and is high-stakes. If you need help at any point in the process, don’t hesitate to contact our team of experienced business immigration attorneys.

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