Since 2017, specialty occupation H-1B RFEs have become commonplace even for occupations that had never before run into trouble. Here is why:
In terms of H-1B eligibility, the beneficiary must work in a specialty occupation and so the burden of proof is on the petitioner to show that the H-1B job meets one of the following eligibility categories:
- The job normally requires attainment of a US bachelor’s degree or higher or its equivalent as a minimum educational requirement for entry into the job.
- A US bachelor’s degree or higher or its equivalent is required for this particular position and in the same position in similar organizations within the industry.
- The employer always requires a US bachelor’s degree or higher or its equivalent for this position as evidenced by past hiring practices.
- This position is uniquely complex and specialized as to require the skills and knowledge associated with completion of a minimum of a US bachelor’s degree or higher or its equivalent to perform.
In 2017, USCIS began adjudicating “normally” as “always.” If an occupation did not ALWAYS require a bachelor’s degree minimum according to the US Department of Labor’s Occupational Outlook Handbook, USCIS would issue a specialty occupation RFE. In effect, they ruled the exception as the norm for jobs that would otherwise would not have run into any issue.
At CCI TheDegreePeople.com, we work with specialty occupation RFEs every year and the best way to get them overturned is with the support of an expert opinion letter. We always recommend including one with the initial petition. However, a computer programmer client came to us last year who did just that and STILL received a specialty occupation RFE.
Here’s why: the expert opinion letter was written by an INSTRUCTOR for the field of the H-1B job. While this expert had extensive experience teaching ABOUT the field, they had very little actual experience working in the field of the H-1B job, nor had they been in positions of authority within the field. USCIS would not accept the validity of this expert’s opinion.
USCIS will only accept the opinions of experts with extensive experience working directly in the field of the H-1B job. This expert should have held positions of authority within the field wherein they made hiring decisions regarding the H-1B position in question. We work with the RIGHT experts in every H-1B field. We requested the client provide additional evidence and documentation regarding the position in question, including a detailed breakdown of the duties and responsibilities of the job highlighting which skills and knowledge are attained through completion of an advanced degree. We requested the ad for the job and ads for the same position for similar companies, as well as proof of past hiring practices.
Our expert was able to use this information and the weight of their credentials to write an expert opinion letter clearly showing USCIS that the position met specialty occupation requirements. The RFE got overturned and our client got to work on time!
If your employee or client is facing specialty occupation issues, let us review your case for free. Visit www.ccifree.com and we will respond in 4 hours or less.
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.