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H-1B: USCIS tightens definition of "specialty occupation"

Posted on Tuesday, March 6, 2012

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The H-1B nonimmigrant visa category allows employers to sponsor foreign nationals with at least a U.S. bachelor’s degree or its equivalent to work in a “specialty occupation”. On April 2, USCIS will begin processing employers’ H-1B petitions for Fiscal Year 2013. As in past years, the H-1B regular quota will be 65,000, with an additional 20,000 slots for individuals with U.S. Master’s degrees or PhDs. With the economy on the rebound, it is likely that employers will file their petitions for H-1B workers earlier this year to ensure that their opportunity is not foreclosed by the unavailability of visas.

Since 2007, U.S. employers have been finding it far more difficult to bring skilled foreign nationals to the U.S. on a temporary basis. Applications for nonimmigrant visas are taking longer to process, and a higher percentage of them are being denied. According to a recent study by the National Foundation for American Policy, Requests for Evidence (RFEs) are now being issued in 25-35% of all H-1B cases. An RFE can result in months of delays, and if not properly addressed, it could set the stage for a later denial.

The most common request we see in our practice is for more evidence proving that the foreign national’s position meets the definition of a “specialty occupation”. According to law, there are four ways to demonstrate that a position can be classified as a specialty occupation. In today’s climate, each may be challenging in its own way.

The first method is to prove that a bachelor’s or higher degree in a closely related field is normally the minimum requirement for entry into the position. This determination largely depends on the qualifications detailed in the Department of Labor’s Occupational Outlook Handbook (OOH) for an occupation with the specified job duties.

Often, especially in emerging fields, there is no information in the OOH on the occupation outlined in the employer’s job description. Moreover, there are only a few occupations where the OOH states unequivocally that a bachelor’s degree in a particular field is absolutely required. When the OOH is less than absolute, USCIS is likely to focus on the possibility a specific degree is NOT required in all cases.

The second way to prove that a job is in a specialty occupation is to show that the duties are so complex or unique that a degree in a relevant field is required. This method requires a highly detailed job description and in-depth information about the employer. Although the legal standard is “a preponderance of the evidence” (also known as “more likely than not”), it is not unusual for the USCIS to issue an RFE effectively asking an employer to present an airtight case.

A third way to prove that a position is in a specialty occupation is to demonstrate that a degree requirement in a relevant field is common in the industry in parallel positions among similar organizations. Over the past several years, USCIS has been interpreting this wording more and more strictly. The word “requirement” is typically construed as an absolute requirement. However, job advertisements frequently use words that are less than absolute. For instance, “bachelor’s degree in computer science strongly preferred” is generally not convincing enough for USCIS.

The words “industry” “parallel” and “similar” are also being applied very narrowly by USCIS. If the job is non-traditional or in a new field, it can be very hard to find job listings that the USCIS will see as parallel. An RFE will often specify that information on parallel positions must come from employers of the same size in the same narrow business domain. A small employer or one in a unique industry will face a significant challenge here.

The last way to prove that a position is in a specialty occupation is for the petitioning employer to show that his or her firm normally requires a bachelor’s degree for that kind of position. Meeting this standard is far easier for a larger employer than it is for a small one. Even then, an employer may not have anyone else in the organization with exactly the same job duties, or may have a mix of employees with and without related bachelor’s degrees.

While the USCIS is undoubtedly denying more H-1B cases these days, we have been able to help many employers overcome RFEs. Despite the challenges, most employers find that the benefits of adding a talented H-1B professional to their staff are worth the time and effort required to gain approval.

Call Immigration Law Associates now at (847)763-8500 to ensure that your H-1B petitions for employees starting in October can be filed as early as possible.

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