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How to Handle Specialty Occupation H-1B RFEs?

Our readers and shoppers who’ve been concerned in the H-1B program and especially during the last 12+ months should have skilled or at the least heard concerning the “specialty occupation” requests for evidence (RFE) which have been and continue to be issued by USCIS.   Our workplace has been receiving and dealing with quite a few such RFEs and we have now been working with shoppers and with the broader immigration lawyer group to formulate a robust strategy for responding to this type of an RFE.

Background of the Specialty Occupation RFE

The specialty occupation challenge isn’t new.   One of the specific necessities for every H-1B petition is that the petitioner show that the provided position is “specialty occupation” which is defined to as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Displaying specialty occupation isn’t a brand new requirement and we’ve got seen such RFEs for many years.  Nevertheless, starting 12 months or so, and particularly because the 2017 H-1B cap season, we’ve seen a dramatic improve within the frequency of such RFEs.   We are seeing firsthand and we are additionally hearing studies from shoppers and readers that a vital proportion of H-1B petitions are dealing with RFEs targeted on specialty occupation (amongst other factors).

The motivation behind this improve in this type of RFEs is likely the March 31, 2017 coverage memorandum “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions’” which seeks to make clear that not all pc positions are presumed to require a bachelor’s degree for entry into the occupation and the April 18, 2017 Government Order “Buy American and Hire American” to seek to “strengthen” the H-1B program.

What Are the Standards for Specialty Occupation for an H-1B Position

8 CFR 214.2(h)(four)(iii)(A) requires for H-IB petitions involving a “specialty occupation” that the place meet at the least one of many following criteria:

  1. A baccalaureate or greater diploma or its equivalent is generally the minimum requirement for entry into the actual position;
  2. The diploma requirement is widespread to the business in parallel positions among comparable organizations or, within the various, an employer might present that its specific place is so complicated or unique that only a person with a degree can carry out it;
  3. The employer normally requires a level or its equivalent for the place; OR
  4. The character of the precise duties is so specialized and sophisticated that information required to carry out the duties is often associated with the attainment of a baccalaureate or greater diploma.

At the very least one in every of these 4 standards have to be established (legal commonplace is “preponderance of the evidence” which signifies that something has been proven that it’s extra doubtless than not) so as to meet the specialty occupation commonplace.  An necessary observe, mentioned in additional detail under, it that it isn’t sufficient that the place merely requires attainment of a bachelor’s degree. The degree have to be in a “specific specialty” or subject.

Bachelor’s Diploma or Greater in a Particular Area

A development in adjudications of specialty occupation RFEs has been that USCIS adjudicators give attention to requiring that even when a place is shown that it requires a bachelor’s degree, it have to be in a particular area associated to the position.    In other words, proving that a position usually requires a bachelor’s diploma shouldn’t be sufficient; somewhat, it have to be proven that the place requires a bachelor’s degree in a selected area or a really slender listing of fields.

This has confirmed to be a big challenge to employers who, due to the character of their business or providers, are in a position to leverage professionals from numerous fields.   For instance, a Management Advisor position can easily require a bachelor’s diploma or larger in administration, pc science,  regulation, public administration and lots of others.    This makes it extraordinarily troublesome to make a case that a bachelor’s degree or larger in a selected area or greater is generally required.

What Type of H-1B Petitions Are Most Probably to Get the Specialty Occupation RFE?

It’s protected to say that few, if any, employers and positions are protected from the specialty occupation RFE.      Usually, physicians, professors, engineers, accountants, attorneys and comparable professional occupations are less probably to be scrutinized.     These RFEs are being issued for each in-house and for third-party worksite positions.

USCIS consults the Occupational Outlook Handbook (“OOH”) and positions which do not explicitly state that a bachelor’s degree or larger is all the time required are topic to specialty occupation scrutiny.   Equally, positions which may require bachelor’s diploma or greater however might settle for a wide selection of fields of research are additionally topic to specialty occupation scrutiny.

For instance, the OOH page for Pc Methods Analysts (SOC 15-1121) indicates that the majority employers require a bachelor’s diploma or larger; nevertheless, OOH also signifies that,

Some employers favor applicants who’ve a grasp’s degree in business administration (MBA) with a concentration in info methods. For more technically complicated jobs, a grasp’s degree in pc science could also be more applicable.

Though many pc methods analysts have technical levels, such a degree shouldn’t be all the time a requirement. Many analysts have liberal arts degrees and have gained programming or technical experience elsewhere.

In consequence, an H-1B petition filed beneath this class is probably going to see specialty occupation scrutiny, though, as we talk about under, there are lots of authorized and factual arguments that can be made in an initial filing and during an RFE response to make the case and acquire an approval.

Greatest Methods to Handle Specialty Occupation RFEs

Our office has been in close contact with USCIS, different practitioners and affected shoppers and we’ve got been working on a technique to deal with this type of RFE responses.      The excellent news is that our  concentrate on one of these instances and a number of years of handling H-1Bs (and their RFEs) has allowed us to understand what sort of paperwork, information and arguments are possible to work to prove specialty occupation.    The dangerous information is that the specialty occupation RFE requires a considerably subjective judgment by the USCIS adjudicator which signifies that approvals are unattainable to guarantee.

Under are some arguments and documents which may be helpful to defend a specialty occupation RFE.    Stating the apparent, the suitability of these factors and argument rely upon each particular person case and ought to be altered and adjusted to match every case’s specific particulars.

OOH, O*NET Online and Other Occupation Databases.    One of the key legal arguments is to rigorously analyze the relevant position and occupations databases.  OOH and O*NET On-line are two of the important thing databases that are used by USCIS adjudicators and sometimes they include a variety of useful info to show that a position normally requires a bachelor’ degree or larger in a selected area.   For example, OOH accommodates a piece describing what are regular instructional necessities for an occupational class and what are the advancement necessities.    Equally,  O*NET Online offers statistics on what number of % of individuals employed in a selected occupation have a bachelor’s degree, master’s diploma or others.    Also, O*NET Online describes the traditional instructional requirements, together with regular training and supervisory necessities.    These items of data typically permit constructing a authorized argument that a bachelor’s degree is a traditional necessities.

Undertaking Documentation Demonstrated Complexity of Place.    We’ve got discovered that it’s helpful to embrace info and documentation of the challenge(s) on which the H-1B employee will work.   This will embrace advertising and enterprise plans, brochures, technical specs,  requirements, budgets,  undertaking timelines, and comparable.  The aim of providing these paperwork is to explain how the provided place matches inside the needs of the employer’s tasks and to set up the complexity of the place.   While undertaking paperwork are sometimes obscure and don’t identify the beneficiary, they assist set the stage and describe the beneficiary’s position in more detail.

End Shopper Letters and Associated Documentation.   For H-1Bs involving third-party placements we also search to get documentation from the top shopper (or middle distributors, if relevant) which might not only be helpful to establish right of management, employee-employer relationship and period of placement (all points normally applicable to third-party placements) but in addition to the top shopper’s necessities for the position and, specifically, that they would wish somebody with a bachelor’s degree in a selected related area.

Detailed Position Description and Duties Breakdown.   Based mostly on our experience having dealt with a whole lot of specialty occupation RFEs,  in our opinion this is likely one of the key paperwork in making the case that the place is sufficiently complicated to require, at a minimal, bachelor’s diploma in a selected area.   Many H-1B petitions embrace a job description which frequently consists of generic phrases and duties; providing an in depth job description is the petitioner’s opportunity to describe the place in detail.   We usually present a particularly detailed and nuanced breakdown of every job obligation with particular tasks which are performed as part of each job obligation.    We then take every process and, to the extent potential, tie it to how the task is so complicated to require a bachelor’s diploma in a selected area.

Instance of how we might take a job obligation and increase into detailed job duties:

Basic Job Obligation: Determines operational goals by learning business features; gathering info; evaluating output requirements and formats.

Detailed Tasks:   Extract knowledge construction and knowledge varieties saved in current and proposed knowledge base;  create knowledge dictionaries that specify knowledge input/output formats; present the info dictionary to Venture Tech Lead and Database Architect for approval; Conduct interview periods with stakeholders from numerous enterprise perform and Subject Matter Specialists(SMEs) to understand present business follow and their interactions with the present system;  Gather and doc shareholders’ feedback about current processes along with other recognized enchancment opportunities, and current those to enterprise perform leaders for them to make last choice relating to operational aims.

Business Necessities – Job Postings and Bulletins by Comparable Employers.     Another avenue to show specialty occupation is to reveal that when comparable employers rent for the same position they normally require a bachelor’s diploma in a selected related area.     Providing job postings or announcements from comparable corporations assist make this arguments.    Nevertheless, for this point to work it is necessary to be sure that the employers are comparable to the petitioner (sort of enterprise,  business, employee measurement), that the position is analogous to the sponsored H-1B position, and that the tutorial requirements are bachelor’s diploma or greater in a selected area (or listing of fields) that match.

CAUTION:   It is rather necessary to keep away from job listings which harm the case for specialty occupations.   We now have seen USCIS specialty occupations denials where an employer included job listings which   embrace a non-specific listing of fields, or that a diploma lower than a bachelor’s degree is required.   For instance, a position requiring “Bachelor’s degree in Computer Science, Engineering, or Business Administration” will in all probability doom this argument as a result of Pc Science, Engineering and Business Administration are simply too unrelated to be deemed “specific field.”

Employer’s Hiring Practices and Standards.    USCIS permits an employer to point to its hiring practices and requirements to make the case that previously (and at present) once they rent for a similar or very comparable position they usually require a bachelor’s degree or larger in a selected subject.     An adjudicator would anticipate to see instructional documents (diploma, transcript, and an evaluation for overseas diploma), proof that the roles are comparable (job description, job supply, position announcements or advertisements, employment verification letter, petition help letter, and comparable), and evidence of hire (W-2, pay data, performance evaluations, and comparable).    We’ve got discovered that when introduced and arranged nicely, this could be a very robust and successful argument for proving specialty occupation.

Third-party Professional Opinion.    A further piece to set up business hiring practices is an opinion from an issue skilled.  This opinion letter (from someone who is professional in the related subject – often an university professor) makes the case that the place’s duties are sufficiently complicated to require a bachelor’s degree or greater in a selected area.    A very good professional letter would talk about the employer and its specific business but then would particularly concentrate on analyzing the detailed place job duties and make the case that (and the way), based mostly on the skilled’s expertise and information of the business, the duties are in line with bachelor’s degree in particular subject (or slender record of fields).

CAUTION:   While we’ve got found that including an professional letter is helpful for specialty occupation instances to present broader business practices,  we now have discovered that typically USCIS rejects third-party professional letters because, in accordance to USCIS, the writer is just not familiar sufficient with the specifics of the employer and the place.     So the third-party skilled letter has to be introduced for what it serves greatest – to present broader business practices and never employer practices.

Also, we have now seen USCIS reject professional letters when there’s info within the case document which is inconsistent with the findings of the skilled.   In consequence, it is necessary to be sure that the professional letter findings match different key case details within the preliminary H-1B petition and other RFE response gadgets.

Last level of warning – many good businesses which give such skilled letters have seen super demand and workload with some professional opinions taking up a month to produce.    If an skilled letter is being looked for an RFE response we advocate ordering it early.

Salary Paid Exceeds Regular Business Pay.    One of the considerably unconventional arguments we frequently attempt to make is that the position is sufficiently complicated relative to different jobs as a result of the provided wage is larger relative to certain proportion of different comparable positions inside the similar occupational category.    This argument works when the provided wage is in the prime tier (no less than 50th percentile) of salaries in the same occupation.   We depend on statistical compensation knowledge for the occupational classification from quite a lot of government and personal business sources. Obviously, this argument wouldn’t apply to all H-1B instances however when it applies, we now have that this argument helps us show the complexity of the position relative to other comparable job.

Wage Degree I Wage & Specialty Occupation.         The Wage Degree I salary challenge was first raised throughout last yr (summer time 2017) H-1B cap season.    At that time USCIS questioned, as a separate major level, whether or not the place described in the place is appropriate for a Wage Degree I salary in the LCA which is actually for entry-level positions.    The Wage Degree I difficulty has since not disappeared utterly but is now most frequently included into the specialty occupation RFE challenge where USCIS questions whether or not the entry-level place is according to a position requiring a bachelor’s diploma or larger.      Please see our Wage Degree I RFE article on detailed description and methods on how to tackle this level.

Lawyer Assistance with Getting ready RFE Response

We now have been very deeply concerned in specialty occupation instances and, having dealt with tons of of such RFEs, we feel that we’ve been in a position to perceive the details and paperwork USCIS adjudicators anticipate  to see so as to situation an approval.    Our workplace might be joyful to provide consultations or help with responding to this (or other) type of RFEs.    If you need to schedule a consultation with an lawyer to talk about a selected case (but maybe with out partaking us to help with the RFE filing), we provide telephone consultations.

We are also completely satisfied and obtainable to help with a more comprehensive RFE response representation.   Please be happy to complete this RFE inquiry type and we might be completely happy to present thoughts and, if relevant, a quote for our authorized help.


Webinar Discussion

Our office has been very lively in understanding the reasons behind this type of RFE wave and discovering the perfect ways for responding.  We offer webinar session the place attorneys of our agency talk about and analyze the Specialty Occupation RFE difficulty and supply options on how to put together a robust response.

Specialty Occupation RFEs: Ideas and Methods for Navigating This Complicated Difficulty
June 27, 2019 1 PM ET

Conclusion

The truth that the specialty occupation RFE has been so widespread and has targeted all types of employers and positions is a sign that this difficulty will probably linger for months or even years.   The H-1B adjudication course of consists of RFE response time, followed by potential attraction or motions to reopen or reconsider of a denied petition, followed by potential further litigation.   Within the meantime, we caution employers who are affected by the specialty occupation RFE wave (or who are getting ready new petitions) to rigorously contemplate and prepare their government submissions.

Our office will proceed monitoring associated developments and provide updates.    Please do not hesitate to contact us if we might be of any assist in getting ready or in any other case aiding with H-1B petitions including specialty occupation RFEs.    Also, please be happy to subscribe to our free weekly publication to get hold of developments on this and associated matter.