CFGI Quoted – “How to Mitigate the Most Common H-1B Requests for Evidence”


“Employers that sponsor foreign workers during this year's H-1B visa filing season will need to spend extra time shoring up petitions to avoid the government's dreaded requests for evidence (RFEs).

“Scrutiny of cap-subject H-1B petitions…has increased since President Donald Trump's ‘Buy American, Hire American’ executive order took effect last spring.

“…‘Last year's H-1B cap season was a major change for many employers,’ said Justin Storch, manager of agency liaison at the Council for Global Immigration…‘Prior to last year, H-1B RFEs were relatively rare for many employers, but now they are the new norm. In addition to RFEs, some employers are now seeing H-1B denials for the first time ever.’

“…These requests for more information are no trifling matter. ‘It is important for employers to consider the full impact that RFEs might have on their workforce. RFEs will delay approvals, which in turn could delay start dates,’ Storch said.

“…‘The most common form of RFEs seen recently are those related to whether a job qualifies as a ‘specialty occupation,’ particularly when it is associated with an entry-level wage,’ Storch said. ‘While this is most common for jobs such as computer programmer and computer systems analyst, we have seen this issue pop up in any number of occupations.’

“…USCIS has been questioning whether foreign nationals' degrees and experience qualifies them for the job. 

“…USCIS is pushing back against petitions listing Level 1 and even Level 2 wages, defined by the Department of Labor (DOL) as entry-level and above entry-level but not experienced, respectively.

“…It's important for employers to document why the salary is appropriate for an entry-level position and why an entry-level position still meets the specialty occupation standard because many H-1B hires are indeed recent graduates filling entry-level positions with salaries falling under Level 1 or Level 2 on the DOL wage scale.

“…[E]mployers will have to demonstrate that the position is complex enough to qualify for an H-1B, but still suitable for Level 1 or Level 2 wages.”

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