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The Floodgates of H1B RFE (Request for Evidence) are opened

Here is the scoop with this year’s H1B filing:

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H1B RFE (Request for Evidence) Common Reasons – Part 1, VIBE

What is a RFE?

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Attorney Wang Speaks at Experimental Biology Conference in Chicago

Upon invitation from the American Society for Biochemistry and Microbiology (ASBMB), Attorney Wang recently spoke at the Experimental Biology Conference held in Chicago April 22-26, 2017. Ms. Wang spoke on a panel entitled “Immigration and Visa Issues for Foreign STEM Graduate Students and Postdoctoral Fellows," which was part of this year’s ASBMB’s Education and Professional Development sessions.

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Checks cleared for H1B quota filings (FY2018)

Some of our law firm's company clients received cleared checks written out to USCIS in connection with their H1B quota cases filed on Apirl 3, 2017. This is clear indication that those particular cases have been accepted by USCIS.  One of the first things USCIS does after receiving a case is to process the filing fees. USCIS does not deposit the filing fee checks if they don't accept the case.

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H1B approved for a Preschool Teacher

In February of 2016, Ms. X came to our firm, interested in applying for cap-subject H1B. Ms. X is employed as a preschool teacher. Ms. X received a Master's in Early Childhood Education from an American university.
 
After a thorough evaluation, we advised Ms. X that this would be a difficult case to win. This is because H1B visa is for “specialty occupations.” In brief, this means the job must require at least a U.S. Bachelor's degree in a specific field, and the worker must have a relevant degree or the equivalent combined education and/or experience. For example, an entry-level Civil Engineer must have a Bachelor degree in Civil Engineering. This is universal practice across the board. All employers who hire Civil Engineers have this educational requirement. 
 
The minimum educational requirements are described in the Occupational Outlook Handbook (OOH). OOH is the reference book USCIS relies on. So let’s look at what OOH says about preschool teachers:
 
“Typical entry-level education”: Associate’s degree
 
This doesn’t look good. Let’s continue to explore:
 
OOH further states: “In childcare centers, preschool teachers generally are required to have a least a high school diploma and a certification in early childhood education. However, employers may prefer to hire workers with at least some postsecondary education in early childhood education.
Preschool teachers in Head Start programs are required to have at least an associate’s degree. However, at least 50 percent of all preschool teachers in Head Start programs nationwide must have a bachelor’s degree in early childhood education or a related field. Those with a degree in a related field must have experience teaching preschool-age children. In public schools, preschool teachers are generally required to have at least a bachelor’s degree in early childhood education or a related field. Bachelor’s degree programs teach students about children’s development, strategies to teach young children, and how to observe and document children’s progress.”
 
This looks more promising. Ms. X is not employed by a public school. The State of California does not require preschool teachers to have bachelor degrees. However, the OOH leaves the door open that the degree requirement may vary depending on specific settings. 
 
Having advised client of the potential uphill battles, we filed Ms. X’s H1B on April 1st. Luckily, Ms. X’s H1B was picked by the lottery! As expected, we received a Request for Evidence (RFE) a month later, questioning the specialty occupation issue. The RFE letter stated:
 
“The Occupational Outlook Handbook (a publication of the United States Department of Labor), indicates that a Preschool Teacher is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no standard for how one prepares for a career as a Mandarin Immersion Teacher and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, the proffered position cannot be considered to have met this criterion.”
 
Let’s examine CFR§214.2(h)(4)(iii)(A), standards for specialty occupation position:
 
“To qualify as a specialty occupation, the position must meet one of the following criteria:
 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
 
We couldn’t not argue (A)(1), because OOH indicates that a Preschool Teacher is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation.
 
Please see below a summary of what we prepared for Ms. X’s RFE:
 
(A)(3) employer’s practice
Documents submitted:
1) Evidence that both preschool teachers on staff for the same program have at minimum specialized bachelor degrees.
 
(A)(2) common in the industry
Documents submitted:
1) Expert Opinion Letter
2) printout of parallel positions requiring specialized bachelor degrees from major job search website
 
(A)(4): uniquely complex nature of job duties
 
Documents submitted:
1) A more expansive job description with each duty assigned a percentage, and accompanied by an analysis as to why a specialized bachelor degree is called for
2) Expert Opinion Letter
 
Two weeks after submitting a RFE response, we received the happy news that USCIS California Service Center approved Ms. X’s H1B petition on August 15, 2015. 
 
We specialize in handling complex H1B issues. To receive a free evaluation and see if you might be eligible for H1B, please email your inquiry to us. Attorney Wang will personally reply, typically within 24-48 hours.
 
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August Visa Bulletin Contains New EB1 & EB2 Cutoffs

The August Visa Bulletin contains some significant changes in certain employment-based categories. For China and India in the EB1 category, the State Department has imposed a cutoff date of January 1, 2010. The worldwide EB1 category remains current. In the EB2 category, a cutoff date of February 1, 2014 was established for worldwide chargeability, with a predicted return to current in October. The EB2 cutoff for India advanced by two weeks from November 1, 2004 to November 15, 2004. In the EB3 category, the worldwide chargeability advanced by two weeks from March 1, 2016 to March 15, 2016. In the EB5 category, the cutoff for China remained unchanged as February 15, 2014. The EB5 category is otherwise current.  

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Time to Plan for the FY17 H1B Quota Filing

On Friday, April 1, 2016, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H1B quota-subject case filings for fiscal year 2017 (FY17). Yes, 2017 is correct. USCIS fiscal year covers a twelve-month period beginning October 1 and ending September 30. If USCIS selects and approves a case, the earliest effective date for the H-1B approval period will be October 1, 2016.
 
April 1st may seem far away from today, but employers and potential H1B workers would be well advised to start the application preparation as early as possible. Our law firm has already completed some H1B petitions in January (completed as in “ready for filing”). Past experience reveals that we become increasingly busy in February and March. 
 
Background on H1B Quota Season
 
There are 65,000 regular H1B quota numbers plus 20,000 advanced-degree quota?exemptions?(U.S. master's quota) available per year. Each year, H1B quota-subject cases can be filed beginning on the first day in April. Under USCIS regulations, the minimum filing period for H1B quota cases is five business days. If there are still quota numbers available at the end of the first five days, the quota remains open until filled. If there are enough cases to meet or exceed the quota in the first five days, the quota closes. In that event, the USCIS stops accepting new H1B quota filings, and a lottery is conducted from the cases filed during the first five business days to randomly select the cases that the USCIS will adjudicate. The remaining cases are then returned as rejected. 
 
Lottery Likely
 
Last filing season, USCIS announced on April 7, 2015 that they received enough H-1B petitions to reach the statutory cap of 85,000 visas for fiscal year (FY) 2016. A total of nearly 233,000 H-1B petitions were filed during the filing period. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the statutory quota. USCIS conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit. The agency then proceeded to return unselected applications, and this process continued well into summer of 2015.
A similar trend is widely expected to continue for this year’s quota filing.
It should be noted that once this quota is closed, the next H1B quota will not open until April 1, 2017, with an H1B start date of October 1, 2017. 
 
Advantage of early planning and preparation
 
Starting early in the season allows the attorneys to identify potential issues that would take time to resolve. For example, the applicant’s foreign credentials may need to be assessed by a degree evaluation company. If the applicant held J-1 visa in the past, a waiver may need to be applied for as soon as possible. There may a gap in the approved dates for employment, and the company can plan for a workaround in advance. In some cases, early planning sometimes yields an alternative route that’s more efficient and more suitable. For example, the applicant may qualify for O-1 visa, or L1-A/B, or investment based applications.   
 
To receive a free evaluation, please email your inquiry to This email address is being protected from spambots. You need JavaScript enabled to view it.. Attorney Wang will personally reply, typically within 24-48 hours.
 
 
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“Science on a Visa”

Dr. Raj Mukhopadhyay was a client of our law firm. Several years ago, we helped Raj and her family apply for a green card via PERM labor certification. She is now a naturalized U.S. citizen and works as the Chief Science Correspondent for the American Society for Biochemistry and Molecular Biology.

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PERM labor certification based I-140 approved for a Design Engineer

Ms. X is a design engineer employed by a structural engineering company with fewer than 100 full time employees.

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Green Card application approved via PERM labor certification for a Pharmacist

Ms. X is a pharmacist employed by a large hospital. When she came to us to inquiry about getting a green card, we advised that the best route to take is Green Card in the EB2 category via PERM labor certification. After a careful evaluation, two areas that needed special attention were identified:

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National Interest Waiver (NIW) approved for a Computer Analyst with no Academic Publication and no Citation

In March of 2014, Mr. X contacted our firm, interested in applying for permanent residency using the self-petition route of National Interest Waiver (NIW). NIW is classified as EB2. For Mr. X’s country of birth, EB2 priority date is current, meaning if successful, Mr. X could become a permanent resident within a short timeframe.

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NIW approved (no academic publication & no citation)

National Interest Waiver was filed to Nebraska Service Center in September of 2014. Applicant is a software engineer on the job market. NIW approved on May 1, 2015, after RFE. Applicant is a native of Taiwan. it's worth noting that the application had no papers published in academic journals and no citation.

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July Visa Bulletin released

Today, the U.S. Department of State (DOS) released the July 2015 Visa Bulletin. EB2 China moves ahead by four months, to October 1, 2013. EB3 China shows no movement, remaining at September 1, 2011. The employment-based, second preference (EB2) category for India sees no movement, leaving the cutoff date at October 1, 2008. EB3 India advances by just over one week, to February 1, 2004.

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USCIS has launched an online tool for I-693 medical exam

USCIS has created a new online tool to help green card applicants find doctors authorized to provide the medical examination required for most applications for adjustment of status (I-485s). The website provides the names and contact information for authorized civil surgeons in the area based on the address or zip code. It also lists what documents applicants should bring to their appointments and briefly explains the medical tests conducted during the exams.

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First batch of Non-PP H1Bs receipts arrived

We got the first batch of quota-subject non-PP H1B receipts from CSC today.

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EB2 China and India jump forward

The U.S. Department of State (DOS) released the May 2015 Visa Bulletin. EB2 China jumps forward by more than a year, to June 1, 2012. EB2 India moves ahead by more than seven months, to April 15, 2008. The employment-based, third preference (EB3) category also advances for those born in China, with a new cutoff date of May 1, 2011. EB3 India only moves ahead by a week, to January 15, 2004. Meanwhile, EB3 Philippines retrogresses severely, to July 1, 2007.

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H1B FY 2016 quota cap reached

On April 7, 2015, USCIS announced that the H1B cap for the 2016 fiscal year has been reached. In addition, the U.S advanced degree exemption has also been met.

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H1B quota filings completed!

We are happy to report that all our firm's H1B quota cases have been delivered to California or Vermont Service Center today. This year, 89% of our cases are U.S. Masters or higher.

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USCIS updates flyers on DACA & DAPA

USCIS has posted two new flyers about expanded Deferred Action for Childhood Arrivals (DACA) and about Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both fliers are available at uscis.gov/immigrationaction and uscis.gov/accionmigratoria. They explain:

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February 2015 Visa Bulletin

According to the newly released February visa bulletin, EB2 China moves ahead six weeks, to March 15, 2010. Meanwhile, EB2 India moves forward by more than six months, to September 1, 2005. The employment-based, third preference (EB3) category also sees movement, with EB3 China advancing by six months, to September 1, 2011. EB3 India only moves ahead by one week, to December 22, 2003, but EB3 for all remaining countries of chargeability jumps ahead by seven months, to January 1, 2014. EB1 remains current for all countries.

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Testimonials

I just want to let you know that I received my green card today and my wife's green card is on the way. I am amazed of how fast they approved my petition. You did a wonderful and very professional job, I will be forever grateful with you. BTW I refer a friend of mine with you, his name is XYZ. He is a very nice guy. Thanks again for you great job.

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Law Office of Vivian Wang
780 Roosevelt, Suite 209
Irvine, CA 92620

Tel: (888) 530-2286
Email: info@gofindlaw.com

DISCLAIMER: Information contained on this site is intended to educate the general public only and does not constitute legal advice. Readers are encouraged to seek advice and counsel from a law firm with experience in immigration and nationality law.