Visa petitions across the board are receiving more RFEs with every year.  This is particularly the case for education-based RFEs that require the form I-140.  Form I-140 visas include EB1, EB2, and EB3, all of which are for foreign nationals seeking a Green Card to stay in the United States to work on a permanent basis.  Form I-140 visa petitions are being met with more RFEs because there are more petitions flooding in every year than there are available to approve annually, and also because there is much confusion over education when it comes to these particular visas.  Often, beneficiaries will be tempted to try for EB2 classification because it takes years off petition processing time, when their education really only meets EB3 standards.

RFEs can be complex and murky in their wording.  The reality is, the pathway to successfully answer an RFE is NOT in the wording of the RFE itself.  USCIS uses the RFE as a tool to gather more evidence about your client’s case to make a decision, but also as a shortcut to justify weeding out petitions amidst the vast number of petitions they have to process every year. 

Instead of looking to the RFE to discern how to answer it correctly, look to the initial I-140 requirements for the visa.

Do you, or does your employee or client meet the educational criteria of the visa?

First and foremost, make sure that the beneficiary’s education meets the educational criteria for the particular visa preference classification.  For example, and EB2 visa requires beneficiaries to hold a US Master’s degree or higher or its foreign equivalent, or a US bachelor’s degree or its equivalent FOLLOWED BY five years of progressive work experience in the field.  If you or your employee or client does not meet these requirements, or cannot meet them with a detailed credential evaluation, you are petitioning for the wrong visa.  However, many candidates who do not immediately meet these criteria actually do with the proper credential evaluation.  This brings us to the second educational requirement for I-140 visas:

The Bachelor’s Degree must be a single source.

This means, unlike other visas such as the H1B, your client cannot combine work experience with years of college credit to write a bachelor’s degree equivalency.  It must be a single source.  This can become troublesome if you or your employee or client holds a three-year bachelor’s degree from a country outside of the United States because that missing fourth year is going to be a problem.  However, years of progressive work experience in the field can in many cases be evaluated to be the equivalency of a US Master’s degree in the field, accompanied by the proper evidentiary support, documentations, and citations.

The Education and Job Must Meet Visa Criteria

It is tempting for candidates with EB3 qualified education to try for EB2 preference.  This is because the wait time for visas being processed is years shorter for EB2 candidates than for those of EB3 education.  Do NOT be tempted into petitioning for a visa that is not right for your client.  EB2 candidates must hold a US Master’s degree or higher or its foreign equivalent, OR a US bachelor’s degree or its foreign equivalent FOLLOWED BY five years of progressive work experience in the field.  These requirements are extremely specific, but also very clearly spelled out.  If you are unsure about your client’s education, talk to a credential evaluator who often works with I-140 cases and their RFEs.  In the same way, some jobs simply don’t meet the specialization requirements of EB2 or EB1.  These visas require highly specialized jobs with advanced degrees and work experience necessary to perform.  If you or your client or employee does not hold a job that fits these requirements, you may be chasing the wrong visa. 

USCIS defines progressive work experience in the field as “demonstrated by advancing levels of responsibility and knowledge in the specialty.”  This means that the candidate must have clearly learned skills and knowledge essential to the industry through this work experience, and instead of passing a test or getting a grade, this progress is evidenced through promotions and increased responsibility.  Progressive work experience comes in handy candidates don’t have the number of years necessary in their foreign bachelor’s degree to make a single source US equivalence, and also when they run into the next RFE-triggering problem.

The Degree MUST Match the Job Offer

If your education, or your employee or client’s education doesn’t match the job offer on the PERM, you will receive an RFE.  This is because candidates need to have the specialized skills and knowledge necessary to perform their job, and a degree in a different field does not assure CIS that they meet minimum requirements to perform their job.  Employers will often hire employees with degrees in related fields that are not an exact match because they know there is enough information overlap, but CIS will question their qualifications with an RFE.  If your degree, or your employee or client’s degree does not match the job offer, progressive work experience in the field can be converted into the necessary degree specialization.  For example, say you or your employee or client has a job in computer sciences but a Master’s degree in engineering.  The beneficiary also has five years of progressive work experience in the field of computer sciences.  A credential evaluator with the authority to make this conversion can write the equivalent of five years of POST-BACHELOR’S DEGREE work experience in the field of computer sciences to a US Master’s degree in computer sciences. 

If you or your employee or client received an RFE, read it over carefully, but don’t get lost in it.  Instead, sit down with your team and understand which of the ORIGINAL VISA CRITERIA are in question.  Find out what evidence you need to provide to meet the ORIGINAL VISA CRITERIA that are in question and submit that documentation in your answer.  The roadmap to answering the RFE is NOT in the RFE, so look to the original visa criteria and make sure that you’re not leaving any open gaps or failing to meet any requirements.

About the Author

Sheila Danzig

Sheila Danzig is the Executive Director at TheDegreePeople.com, a Foreign Credentials Evaluation Agency.  For a free analysis of any difficult case, RFE, Denial, or NOID, please go to http://ccifree.com/ or call 800.771.4723.

posted Nov 18, 2016 in RFEs (H1B, I-140, PERM, Consulate) by Sheila Danzig (8,100 points) | 323 views