Filing season for the H-1B cap has come and passed. That means this season’s first round of RFEs is on its way.
Last year, we saw a spike in Specialty Occupation RFEs that questioned whether a job qualified for H-1B eligibility. For a job to meet H-1B specialization requirements, it must fit the definition of specialty occupation according to USCIS statutes. Here is where it gets murky:
There are two very similar but profoundly different definitions of specialty occupation within the same CIS statute.
INA § 214(i)(1) defines it as, “An occupation that requires theoretical and practical application of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
INA § 214.2(h)(4)(ii) holds the same definition EXCEPT instead of stating the degree must be in THE specific specialty, it states itmust be in A specific specialty.
Employers will hire H-1B employees for positions when they have a degree that exactly matches the job, or that is related to the job in such a way that there is significant specialized knowledge and skill overlap. This still tends to be a narrow range of degree specializations. In the past, CIS has approved visas according the second definition that allowed for beneficiaries with degrees in related fields that did not exactly match the H-1B job because the job requiring that minimum credential would qualify for H-1B eligibility under that definition. In recent years, CIS has switched to the first, strict definition that requires beneficiaries have “a bachelr’s degree or higher in THE specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
However, if you, or your employee or client receieves an RFE for specialty occupation, disputing these definitions will not help you. The important part to focus on in BOTH of these definitions is: “or its equivalent.”
In the Tapis International v. INS decision, it was established that equivalent encompasses academic and experienced-based training in various combinations. This means that a job or a candidate doesn’t necessarily need a bachelor’s degree in THE specific speciality to be eligible for H-1B. There are four options, one of which must be met:
If the job meets one of these four requirements – and the beneficiary meets the educational and experiential requirements as well – the job meets H-1B eligibility requirements. However, you will need evidence to back up that the specialization of the job in question is consistent with industry standards or employer hiring practices. This requires a detailed employer support letter, but CIS will NOT just take the employer’s word for it. Your RFE response must also include an expert opinion letter to back up that the job does meet H-1B specialization requirements.
At TheDegreePeople.com we have experts on hand 24/7 to review your case and write the letter you need, or your employee or client needs to get that RFE overturned. Every year, we work with difficult H-1B RFE cases and we get them overturned virtually every time. For a no charge and no obligation review of your case, visit ccifree.com/. We will get back to you in 48 hours or less with a full analysis and expert consultation on how to best proceed.
This article was written by Rebecca Little