The Specialty Occupation RFE has become the scourge of H-1B hopefuls and their teams, and they are impacting occupations that had never been called into question before 2017.
With the high rate of H-1B RFEs, it is important to understand what Specialty Occupation means, how the burden of proof as shifted in the past few years, and what USCIS is looking for as proof.
There are four main categories that define a Specialty Occupation, and the H-1B job must fit in one of these categories:
- The position must require a minimum of a US bachelor’s degree or higher or its equivalent.
- It is an industry standard for this position to require a minimum of a US bachelor’s degree or higher.
- It is an employer standard to require a minimum of a US bachelor’s degree or higher for this position.
- The nature of this specific job is uniquely complex and specialized as to require whoever holds the position to have the skill and knowledge associated with having attained a minimum of a US bachelor’s degree or higher.
In general, it is advised to try to meet the requirements of at least two of these categories to avoid an RFE.
Since 2017, USCIS has started using the exception, instead of the norm, to justify rejecting H-1B petitions based on alleged specialty occupation issues. The US Department of Labor Occupational Outlook Handbook is the main reference USCIS uses to discern if a job meets the first and second requirements. In the past, jobs that typically required a US bachelor’s degree or higher, but not in all cases, would be approved. Now, USCIS is adjudicating the exception as the rule. That means if you, or your employee or client’s job is one of these “borderline” occupations, you need to aim for the third or fourth option as well to cover your bases.
If you, or if your employee or client’s job is specialized based on the third option, you need to provide documentation of past hiring practices and the ad for the job showing the minimum degree requirement. It is also advised to address the fourth category and provide a detailed breakdown of the tasks and duties of the job showing how they require specialized skills and knowledge attained through having earned a US bachelor’s degree or higher. If the job fits into the fourth category, you will need to provide this documentation as well.
For specialty occupation issues – whether you are filing an initial petition or refuting an RFE or Denial – it is advised to include an expert opinion letter from a professional in the industry of the H-1B job with extensive field experience. The purpose of this letter is for the expert to lend their authority to your case, or to your employee or client’s case and explain why this particular job does require a minimum of a US bachelor’s degree or higher to effectively carry out its duties and responsibilities. At TheDegreePeople.com we work with experts in every H-1B field, and it is the most effective strategy we have seen to prevent and successfully overturn H-1B specialty occupation RFEs. For a free review of your case visit ccifree.com/.