Request For Evidence

5 Important Issues To Consider In H-1B Specialty Occupation RFEs

We are continuing our series on H-1B Specialty Occupation Request For Evidences (“RFE”).

Ramchand & Raval has successfully responded to many such RFEs, and published numerous articles on this topic. Our strategies have been successfully implemented by many companies to meet the H-1B visa requirements. Please subscribe to our newsletter for the latest in H-1B visa news.

Before responding to the Specialty Occupation RFE, you must be aware of the following issues that can determine your response strategy. Whether you are an H-1B visa holder filing an H1b transfer, H1b extension or a student going from F-1 to H-1B status, you should take special care to ensure you are aware of the following issues:

1.     MULTIPLE AVENUES. There is more than one way to establish a job is a Specialty Occupation. Use as many as you can to increase the chances of an approval.

a.     Prove to USCIS that a Bachelor’s degree or higher in a specific field is normally a minimum requirement for the H-1B job.

b.     It is commonplace in the specific industry to employ people having a Bachelor’s degree or higher in a specific field to perform parallel or similar positions. Utilize job postings, trade publications or the like as proof of industry standards.

c.     The petitioner normally requires a Bachelor’s degree or higher in a specific field for this position. Utilize past hiring practices and provide evidence of comparable requirements.

d.     The nature of specific duties of the position are so specialized, unique or complex that it requires a Bachelor’s degree or higher in a specific field to perform. We suggest obtaining a third-party expert opinion letter.

2.     BEWARE OF JOB DUTY CHANGES. You can elaborate on the job duties of the position already submitted but you cannot change them. Often the H1B RFE asks for more details on the job duties of the position. You can do this by adding sub-tasks and percentages of time anticipated to perform each (if you have not already submitted the percentages of time at the filing stage). You cannot add new tasks or inconsistent sub-tasks at the RFE stage. This is a major risk for F-1 students who are applying for their first H-1B. F-1 may have utilized job duties from their OPT/CPT job that do not have to be articulated in an H-1B framework and as such, may be worded poorly with soft-skills, or with little technical details.
 
3.     NARROWER THE BETTER. USCIS takes a very narrow view of the Specialty Occupation requirement. Stating that too many unrelated degree concentrations qualify for the position is risky and often leads to a denial. When thinking whether a degree is related, consider what department at a university manages the degree. For example, zoology and computer science would be generally unrelated fields. As such, it would be best to avoid stating these two unrelated degrees are the requirements for the job.

4.     SALARY MATTERS. In many cases, you may need to address the h1b salary or wage level in the evidence you provide. For example, when providing evidence of comparable jobs at other companies (to show industry standards), keep them in the same wage range to make it applicable, and have experts address wage levels in their opinions. Also, if your LCA is based on a higher wage level, have the experts use this point to strengthen their argument in your favor.

5.     GET GOOD EXPERTS. Not all experts are the same. Use good experts who provide detailed analysis. Often analysis using independent sources and materials are needed, not just the statement or opinion of the expert. Weak expert opinions without thorough analysis are a waste of money and often dismissed by USCIS, and can lead to a denial. 

In addition to the above issues, there are many other factors to take into account when responding to a Specialty Occupation H1B RFE.

Please contact Ramchand & Raval at mail@immlegal.com or 646-821-4000 with any questions on Specialty Occupation RFE. 

Top 5 Strategies For H1B Specialty Occupation (2019 ed): Improve Your Chances

With the increase of Request For Evidences (RFEs) and denials that were issued by USCIS in the 2018 cap filings, petitioners must take a more proactive approach to filing, and should not file H-1B cases as they did in the past. We are utilizing new legal strategies to file proactively and address potential issues as raised during the 2018 cap season. By doing so, we are strengthening cases upfront, with the goal to minimize the number of RFE inquiries. 

When USCIS reviews a case and finds that evidence is lacking, USCIS may issue a RFE, requesting the missing evidence. Many of the RFEs issued in 2018 were 10 to 15 pages long and required a great deal of effort on behalf of petitioners to address.

Once a petitioner responds to the RFE, USCIS issues an approval or denial, based on a review of the RFE materials submitted. It is critical to understand the RFEs that were issued in the 2018 cap season and address them in the 2019 filings to avoid denials.

Below are a few examples of the strategies we are employing in 2019 to address one of the most prevalent RFE issues of the past year – whether a job is in a Specialty Occupation. In other words, USCIS is questioning whether the offer position 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 entry into the occupation.

Here are the TOP 5 strategies we are using this 2019 cap season:

1.    Select appropriate SOC codes – make sure that the job duties reflect the correct and appropriate SOC code in the LCA. This involves strategy and discussion between your legal and HR teams, as it involves an analysis of the job duties compared to certain occupations that qualify as Specialty Occupation. Also, certain occupations that may normally be problematic as Specialty Occupations, may qualify as a Specialty Occupation, if handled appropriately at the filing stage.

2.    Obtain Specialty Occupation Opinions / Industry Opinions DURING FILING –identify employees or colleagues who have significant experience in the relevant field, and work with your attorney to determine whether they qualify as industry expert, and have them write an opinion as to why the job is a Specialty Occupation. We provide the experts with samples and have a training session for them in opinion writing. Using a known person costs little to no money (if needed, a professor’s opinion can be obtained if there is still a RFE issued) and USCIS may accept this industry opinion at filing stage, thereby preventing a Specialty Occupation RFE.

3.     Use the right educational requirements in the petitioner, client and vendor letters. Ensure that the educational requirements stated in those letters correspond to the SOC code in the LCA, and therefore strengthens the Specialty Occupation evidence. We provide templates and samples that have successfully worked in past cases for petitioners, end-client, and vendors to use. We also have conference calls/information sessions for end-clients and vendors, to assist in addressing USCIS requirements.

4.    Ensure that appropriate advertisements from other companies are provided up-front. This is a beneficial step because it establishes to USCIS that your requirements for the job are consistent with industry requirements. It is not beneficial to submit advertisements of a job that states various unrelated educational fields as a requirement or may state different experience as a requirement. USCIS often dismisses advertisements when ads are not comparable to the job, meaning they have different requirements than yours. For example, if your job requires a bachelor’s degree in computer science, a comparable job would not require a master’s degree in electrical engineering. USCIS will likely dismiss this. We work with our clients to identify appropriate advertisements for submission to USCIS. 

5.    Show USCIS that the Petitioner hires individuals with similar requirements. Petitioners must categorize their employees per occupation. It is important to work with your legal team to do this appropriately. We work with our clients to ensure this evidence is presented in the strongest manner. For example, if the H-1B is being applied for a Software Developer, present the information in a manner that establishes that your company hires only software developers with qualifications which would make the position eligible as a Specialty Occupation. This is very tricky and is often mishandled when done haphazardly! Showing that a petitioner does hire individuals with the requisite qualifications into the same occupation is critical. However, not all employees will have the qualifications based on education alone, in which case, the categorization must be done with care, to show that all these employees are indeed qualified, and the job is therefore a Specialty Occupation.

We are employing these strategies at the filing stage in the 2019 cap season.  We also employ certain strategies for issues such as Employer-Employee Relationship, Availability of Off-site or In-house Work, etc.

Please feel free to contact us if you have any questions at 646-821-4000 or by email at mail@immlegal.com

To attend the conference call, please email us at mail@immlegal.com, and we will send you the dial-in information.

 We look forward to speaking with you!