The Department of Homeland Security and USCIS have submitted an Interim Final Rule that will go into effect on December 7, 2020. This rule restricts H-1B eligibility by revising two key definitions, one of which has been blocking the ability of USCIS to illegally deny H-1B visas: “specialty occupation.”
This Final Interim Rule also revises the definition of “United States Employer,” and add definitions for “worksite” and “third-party worksite.” You can read the entirety of this rule here.
USCIS has been issuing an unprecedented number of RFEs for specialty occupation issues, most of which have been fairly easy to overturn because in adjudication USCIS was breaking with the definition of the term. The current definition of specialty occupation that has been giving USCIS so much trouble denying visas is:
“An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health education, business specialties, accounting, law, theology and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as minimum for entry into the occupation in the United States.”
The NEW definition of “specialty occupation” that goes into effect December 7, 2020 is as follows:
“An occupation that requires: (1) The theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, or the arts; and (2) The attainment of a U.S. bachelor’s degree or higher in a directly related specific specialty, or its equivalent as a minimum for entry into the occupation in the United States. The required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization is sufficient to qualify for the position. While a position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.”
The key difference here is that the second definition will raise the burden of proof on the H-1B applicant to prove direct application of a body of highly specialized knowledge and skill earned through a specific degree. As explained in the rule: “Under this new rule, the petitioner will have the burden of demonstration that there is a direct relationship between the required degree in a specific specialty (in other words, the degree fields(s) that would qualify someone for the position) and the duties of the position.”
The bad news is, this rule changes the regulation to legally justify the massive increase in H-1B RFEs and Denials. The good news is, at CCI TheDegreePeople.com, we have already been advising our clients to do just as the rule says to show the direct application of knowledge and skills attained through a specific degree to the duties and responsibilities of the H-1B job. We have seen a 96% success rate overturning specialty occupation RFEs with an expert opinion letter clearly showing how the attainment of a specific specialized degree directly applies to the H-1B job. We have also been helping H-1B applicants fill in the gaps between the degree they have, and the specific degree specialization they need to exactly match the H-1B job title by writing credential evaluations that take work experience in the field and specific classes in the academic area of the specialization into account.
Let us help you build an airtight petition. Before you file, visit www.ccifree.com for a free review of your case. We will respond in four hours or less.
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.