Over the past three H-1B cap-subject seasons, we have seen an unprecedented rise in specialty occupation RFEs calling jobs into question that had never run into trouble before. This trend is echoed across the entire H-1B visa program, with overall approval rates plummeting from over 80% in 2015 to around 60% for FY2019.
USICS approval trends changing, however, is nothing new. Before the rise of the specialty occupation RFE, education issues were the big change. USCIS began issuing RFEs for petitions in which the employee held an advanced degree in a related field, requiring the employee have a degree in the exact field of the H-1B job. This threw a wrench in the system but we learned how to successfully answer these RFEs with detailed credential evaluations and creative solutions.
The biggest solution when addressing difficult RFEs of any kind are to go back to the basics and go from there. It worked with education RFEs, and we have seen widespread success with it when facing specialty occupation RFEs.
There are two main standards that must be met to qualify for H-1B status. Although USCIS has raised the burden of proof to meet these standards, these two rules continue to be the guide to overturn an RFE. The H-1B job must require a minimum of a US bachelor’s degree or higher to perform, and the H-1B employee must hold that degree or its equivalent. In the recent past, the issue was to prove the employee had a degree in the exact field of the H-1B job, which often required a credential evaluation to fill in the gaps between the employee’s education and the H-1B job. Now, we have to go several steps further in a similar way to prove that the H-1B job meets specialty occupation requirements.
In the past, jobs that typically required a minimum of a US bachelor’s degree or higher as an industry standard were making the cut. Now they do not. One major example of this is the job of computer programmer. According to the US Department of Labor’s Occupational Outlook Handbook, sometimes employers will hire to this position with just an Associate’s degree. In the past, the exception was not viewed as the norm, but now USCIS is adjudicating as it is. To prove specialization, you and your team need to go further to prove why the job in question meets specialty occupation requirements despite the exceptions.
You will need to provide a detailed breakdown of the duties and responsibilities of the job that highlight the ways in which specialized skills and knowledge are applied theoretically and practically. You will also need to show similar ads for the same job in similar companies in the industry to prove that a US bachelor’s degree or higher is the minimum requirement as a standard, as well as evidence of past employer hiring practices that show this minimum education requirement as a standard for this particular job.
Along with this documentation, you will need to provide an expert opinion letter. This expert must have extensive field experience as USCIS has rejected opinion letters from instructors and professors in the field who have not worked directly in the field beyond instructing it. The expert will look over all of the documentation you have prepared for your RFE response and lend their opinion that this job does meet specialty occupation requirements. At TheDegreePeople.com we have the right experts on hand in every field, and our experienced staff can help you work through the jargon of even the most difficult RFEs as we work with them every year.
USCIS approval trends change every year, and this challenge is no different. Start by going back to the basic eligibility requirements and work diligently from there.
Remember, you only have 90 days from when you receive an RFE to respond to it. Time is of the essence and waiting until the last minute will just hurt your chances of success. For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.