USCIS does not want to accept working evaluation

[Werniman 0]

Hello,
my wife is a glassblower (she produces glass figures). This is a rare crafting profession in art. Here in Germany you can learn this profession in 3 years at a special vocational school. In order to open your own company, you either have to do a master's degree. For a masters degree, you have to do a 2-year advanced training in which you learn the basics of a company management, staff management, etc.  However, if you have enough work experience (at least 6 years), you can get a license to run a company without this master's degree. She was self-employed on this basis from 2005 to 2015.
In the US, there is only one school that trains professions in glass art. The training there lasts 2 years and includes only a brief insight into different art directions, but no specialization. The graduates are useless with this "education". Even talented graduates need at least another 3-4 years of practice training in a company before they meet the requirements. For this reason, my wife is not only employed as a producer, but also as a trainer.

Since 2015 she lives with a H1B in the USA and is employed there with her former main customer. So now she is her employer. In his company, she not only produces articles herself, but also trains other people in this profession. The employer would like to sponsor her a green card. Prior to the application, a PERM and a working evaluation certification had to be applied for. She got this. The working evaluation certifies that she has a US Bachelor equivalent education / work experience. But this comparison alone is nonsense, because this job is not an academic profession. Neither in Germany nor in the USA. The closest academic education would be art study. But this does not automatically qualify you to work as a glassblower.

In April 2018, the green card application was submitted, and in August 2018 the premium processing was subsequently applied for. At the end of August we received an RFE. Additional proof was required that her professional qualifications correspond to a US Bachelor. How can we explain to the USCIS that there is no 100% equivalent academic qualification because the job is too rare?

[arken 4,197]

What was the category of GC? If the category is like EB2 or EB3 for professionals that requires a US bachelor’s degree or equivalent and the petition was applied based on the equivalent certificate that they aren’t convinced with, i don’t think saying there is no equivalent US certification is a solution. While the job is rare, the petition has to abide its requirements. May be try another look for the evaluation.

Edited September 8, 2018 by arken

[Werniman 0]

The category is EB3. As far as I know, this is again subdivided into the categories E31 and E32.

The USCIS writes the following :
 

Quote

"The E31" skilled workers classification applies to any position that requires at
Least two years of training or experience not being a temporary or seasonal nature for
which qualified workers are not available in the United States. Relevant post secondary education
may be considered to be training.
An I-140 petition for a skilled worker must establish:
-The position requires at least two years of  training or experience;
-That the petitioner can demonstrate the ability to pay the offered dare;
-That the petition is accompanied by a Laboratory Certification (Form 9089)
which has been certified by the Department of Labor; or at uncertified ETA Form
9089 that has been submitted as a blanket laboratory certific ation under Schedule A.


The E32 "professional" Classification means a qualified beneficiary who holds at least
out. baccalaureate degree or a foreign equivalent degree and who is a member of
the professions.
An I-140 petition for a professional must establish:
-That the position requires at US baccalaureate degree or a foreign equivalent degree
and an individual who is a member of the professions;
- That the petitioner can demonstrate the ability to pay the offered dare;
-That the petition is accompanied by a Laboratory Certification (Form 9089)
which has been certified by the Department of Labor; or at uncertified ETA Form
9089 that has been submitted as a blanket laboratory certific ation under Schedule A.

(Source: https://www.uscis.gov/sites/default/files/USCIS/Resources/Resources for Congress/Congressional Reports/Employment Visa Categories.pdf)

Does that not mean that applicants for an E31 green card do not need a bachelor's degree? After all, he is only listed on E32.
Unfortunately, the immigration lawyer involved is very un-communicative, so I do not have a copy of the I140. Therefore, I can not say what exactly was requested.
 

Edited September 8, 2018 by Werniman

[Alabamak1 688]

it seems to be that your problem relies on the lawyer more than USCIS. The processing of work visas have to be convincing to USCIS and if a lawyer is not communicating with you and/or not telling you what was sent in.... My suggestion try to find another immigration lawyer and try a better way of of submiting the application. I know how complicated work visas are in cases like this. Personally i had experience from a immigration attorney that had helped a watch repair person with a degree in Switzerland. No Bachelors either and she had a rare talent for this. Short story, they got her approved. Unfortunately, that lawyer has passed away. Good luck. 

[Werniman 0]

It is actually planned a change of lawyer. Currently we are waiting for the lawyer to hand out the documents she has submitted. We have already found a new lawyer.

The previous lawyer is really bad. This lady was already involved in the green card procedure of the employer himself (he is also German) and the H1B procedure of my wife. In both cases, she worked so slowly that PERM / Labor Certification expired. Or she always requested the necessary documents at the last moment. She was so slow at the greencard process of my wife as well, always pointing out that there is still time until June because PERM does not expire until June. It was obvious that she was trying to let PERM expire again in order to collect reimbursement fees again.
I would have immediately handed my wife's green card application to another lawyer. Unfortunately, the decision was with her employer. And this man is very gullible when a pretty woman smiles at him. *Rolling eyes*

[NikLR 13,227]

Op's wife does not need a Visa.  She is in the USA on an H1B which is dual intent and needs to adjust her status.  

[Werniman 0]

I do not know. At the moment, an application for the extension of the H1B is running parallel to the green card application. The first H1B expired at the end of April and she is in the 240day grace period.
Strictly speaking, she has 2 ongoing petitions: EB3 green card and H1B. Both are pending. At the moment, they are only allowed to work because the EAD (I751) has already been approved.

[NikLR 13,227]

Ead is i-765 not i-751.  I-751 is to remove conditions on a green card. 

 

You need a good immigration lawyer. This is beyond DIY.  I'm sorry.  

[Werniman 0]

47 minutes ago, NikLR said:

Ead is i-765 not i-751.  I-751 is to remove conditions on a green card. 

 

You need a good immigration lawyer. This is beyond DIY.  I'm sorry.  

Ops...wrong number, sorry. You´re right.

[Boiler 45,486]

H1b simplistically requires the applicant to have a degree and the job to require that degree, there are exceptions regarding experience but obviously to get the visa the job requiring a degree was shown.

 

EB3 does not have that requirement but does require Labour Certification.

 

Sounds like the issue is a crappy lawyer.

[TNJ17 1,329]

Are you a US citizen? Why are you going through all this talent visa process when your wife can adjust status from being married to you?

[CEE53147 559]

Have you looked at O and P visas?

[randomstairs 303]

The employer needs to find a competent attorney for the case. The EB31 seems like the way to go in your case, not the EB32! The first sign of a really bad lawyer is that they are not risk-averse. It should always be the attorney who pushes the client to do their part faster and not the other way around (in normal circumstances).   

[kris&me 572]

she is already here on H1 b visa

this itself explains as such

H1-B Visa is a nonimmigrant Visa which is designed to allow U.S. employers to employ foreign nationals in specialty occupations in the United States of America for a specified period. People from outside U.S. who are looking for employment need to have a H1-B Visa under the Immigration and Nationality Act.

 

i am sorry but Cornng Glass Works has trained and employed many in the glass blowing field sending specialized pieces to corintions of queens and marriages of prince and princes

Even gafters in this industry make good money

immigration already approved her on what evidence to come in the first place ?

that would be the evidence i would use again

 this is a highly respected field in the US and only the very talented are able to make a living

u say "she is now her employer"   do u mean she is owner and trying to sponsor herself as the employer????

BTW 

congratulations on being so talented

i am sure u can work this out

the company needs a better lawyer

[Werniman 0]

I did not see the RFE letter myself, but according to my wife, the USCIS wants more evidence that their education is adequate for a US Bachelor's degree. Of course, what this proof should look like was not mentioned.

Three years ago (when H1B was applied for), USCIS also required evidence that my wife's education / work experience is adequate for a US Bachelor's degree. At that time, 3 years of professional experience were recognized as a substitute for every year of art studies (!). In other words, 12 years of work experience compensated for a complete art degree.

My wife was self-employed here in Germany. Our main customer then offered her a job in the USA. She then closed her company and has since been employed by his US company.

The company actually needs a better lawyer. As I already wrote, the company has now found a better lawyer (a lady). She also wants to take over the case, but he needs the documents from the previous lawyer. And the previous lawyer is in no hurry to release the documents. This previous lawyer (also a lady) has been constantly trying to delay the process. The reason is obvious: whenever a deadline expires (for example, for the Labor Certification of the H1B), she was again paid to resubmit the case.

Normally, my wife´s employer always requires copies of the documents submitted from the former lawyer. At the H1B she also sent these copies. For the green card documents, the former lawyer tried to withhold these from us.  She always told new excuses: vacation, child sick, court appointments.  It would not surprise me if she wrote nonsense into the application for it to be immediately rejected by the USCIS. Her behavior showed that she was trying again to forfeit the Labor Certification / PERM.



Edit: need to edit this text... For some reason, not everything was posted.

Edited September 8, 2018 by Werniman