Immigration

Srinivasa Reddy Kandi: Addressing H1B Specialty Occupation Requests for Evidence.

February, 14, 2025-04:56

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Addressing H1B Specialty Occupation Requests for Evidence:

When submitting an H1B petition, employers may encounter a request for evidence (RFE) from the U.S. Citizenship and Immigration Services (USCIS), which seeks additional information prior to making a determination. A frequent concern highlighted in RFEs is whether the position qualifies as a “specialty occupation.” This article clarifies the definition of a specialty occupation and offers practical advice on how to minimize the likelihood of receiving RFEs related to this matter, as well as strategies for addressing specialty occupation RFEs when they occur.

What Constitutes an H1B Specialty Occupation?
Under U.S. immigration regulations, a specialty occupation is characterized by the requirement of BOTH:
The theoretical and practical application of a body of highly specialized knowledge
A minimum of a bachelor’s degree (or its equivalent) in a specific or closely related field of study necessary to fulfill the job responsibilities
In more straightforward terms, the role must be sufficiently complex and specialized that it cannot be executed without at least a bachelor’s degree (or higher) in a pertinent field.

To minimize the likelihood of receiving a Request for Evidence (RFE) regarding Specialty Occupation, employers and immigration professionals can implement several proactive strategies. Here are some recommendations:

Develop Comprehensive Job Descriptions
Ensure that the initial H-1B filing includes a robust set of job responsibilities. The description should maintain a balance, avoiding overly technical language while not being too simplistic.

Select the Appropriate Occupational Classification
Choose a suitable Standard Occupational Classification (SOC) code in the Labor Condition Application (LCA) that accurately reflects the job duties. It is important that the SOC code corresponds to O*Net job zone 4 or higher.

opt for a Higher Prevailing Wage Level
Submitting a higher wage level in the LCA can enhance the case, particularly if an RFE is received. However, it is crucial that the wage level accurately represents the minimum requirements for the role.

Define Relevant Degree Fields
Refrain from indicating that a bachelor’s degree in a broad array of unrelated disciplines is acceptable. For instance, general engineering, science, or business may be viewed as excessively vague.

Provide an Expert Opinion Letter
Consider including an expert opinion letter that clarifies that the occupation generally necessitates a bachelor’s degree in a specific or closely related field.
Responding to a Specialty Occupation RFE

Despite thorough preparation, the USCIS may still issue a Request for Evidence (RFE). To effectively address this, the employer must establish that the position aligns with at least one of the four regulatory criteria for a specialty occupation. Satisfying multiple criteria enhances the likelihood of approval.

Establish the Requirement for a bachelor’s degree
Provide documentation indicating that a bachelor’s degree (or higher) in a specific or related field is the standard minimum requirement for the role. Resources such as the U.S. Department of Labor’s O*NET or the Occupational Outlook Handbook (OOH) can substantiate this assertion. Additionally, include USCIS guidelines, academic studies, or other pertinent materials that support the necessity of the degree.

Illustrate Industry Standards
Show that the expectation of a bachelor’s degree (or higher) is a common practice within the industry for similar positions. This can be achieved by submitting:

- Job listings from reputable platforms that outline degree requirements for comparable roles
- Letters from industry associations or other organizations affirming the degree necessity for similar positions

Provide Evidence of the Employer’s Hiring Practices
Demonstrate that the employer generally mandates a bachelor’s degree (or higher) for the position. This may include:

- Job postings made by the employer for the same or similar roles
- Documentation indicating that current or former employees in similar positions possessed the required degree.
Emphasize the Intricacy of Job Responsibilities
Illustrate that the responsibilities associated with the position are sufficiently intricate to necessitate at least a bachelor's degree (or its equivalent) for effective execution. To substantiate this claim:

Provide a comprehensive breakdown of job responsibilities, detailing the percentage of time allocated to each task.
Clarify the importance of a degree in a specific discipline for fulfilling the role's requirements.
Attach a letter from a university professor or an industry authority endorsing the necessity of the degree.

In conclusion, receiving a Request for Evidence (RFE) can be a source of anxiety for both employers and employees, as it may result in a denial and potentially jeopardize the foreign national's status. Nevertheless, an RFE also serves as a chance to elucidate how the H1B petition aligns with the eligibility criteria. Careful planning both prior to submission and in response to an RFE is essential for achieving a favourable outcome.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.