In the past year, USCIS faced three convictions regarding illegally denying RFEs due to specialty occupation issues. Despite these judicial decisions, USCIS continues to adjudicate H-1B petitions wrongly, which means H-1B beneficiaries still must take steps to prevent and fight these specialty occupation RFEs.
Here is the issue: USCIS defines a “specialty occupation” as a job that normally requires a minimum of a bachelor’s degree or higher to perform. Instead of adjudicating the job based on “normally” USCIS has been issuing RFEs for jobs that some employers will sometimes hire those without this degree to the position. In doing so, USCIS adjudicated the exception as the norm without any actual changes to laws regarding this definition. That means, unless you want to take USCIS to court, you need to prepare for this. If the entry in the US Department of Labor’s Occupational Outlook Handbook for your job, or for your employee or client’s job states that while a bachelor’s degree is normally a minimum requirement sometimes employees without this degree are hired, you need to take an extra step to protect against a specialty occupation RFE.
At CCI, TheDegreePeople.com, we have been working closely with specialty occupation RFE and Denial cases. We have found that the best way to prevent and answer this issue is with an expert opinion letter written by an expert in the field of the H-1B job with extensive experience working in the field. This experience includes hiring employees to the position in question, similar positions, and positions that rely on the person hired to the position in question being fully qualified to do their job. This opinion letter provides a detailed breakdown of how specific skills and knowledge acquired through a bachelor’s degree program are applied to the duties and responsibilities of the job.
The more information about the job, the employer, and past hiring practices you can provide to the expert, the better the letter will be. We have found that submitting an expert opinion letter in the response has a 90% success rate in getting it overturned. Our clients who get one ahead of time and submit the letter with initial petitions do not come back to us with an RFE later.
Since 2017, positions that had never before been called into question began receiving specialty occupation RFEs and Denials. We strongly encourage H-1B applicants to include an expert opinion letter regarding specialty occupation issues in the initial petition.
For a free review of your case, visit www.ccifree.com or simply reply to this email. We will get back to you in 4 hours or less.
Sheila Danzig is the executive director of CCI, TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.