Regular H1b FY2019 Denied after submitting RFE Response

[im_immigrant]

 

Hello, I currently on F1 Visa, graduated in Dec 2017(MS in CS). Working in a full time role in Cyber Security for a reputed company on my initial OPT. 

Employer filled H1b for 2019 FY, made it through the lottery got the receipt number in early May. 

Received a RFE for Speciality Occupation around July 2018, employer prepared a response by mapping the courses with the job duties and also attached a Professor opinion letter and sent in Sept 2018.

Petition got denied in mid Oct 2018. Employer haven't received the notice yet. I'm worried if my employer filled the petition for next year it might end up in same way. 

Please share any thoughts/suggestions.

 

 

[Kerwin Ross]

If you have the patience to read this, I am sure it will help. 

Background of the Specialty Occupation RFE

The specialty occupation issue is not new.

One of the explicit requirements for each H-1B petition is that the petitioner prove that the offered position is “specialty occupation” which is defined to as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

 

Showing specialty occupation is not a new requirement and We all have seen such RFEs for many years. 

The motivation behind this increase in this kind of RFEs is likely the March 31, 2017 policy memorandum “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer-related positions'” which seeks to clarify that not all computer positions are presumed to require a bachelor’s degree for entry into the occupation and the April 18, 2017 Executive Order “Buy American and Hire American” to seek to “strengthen” the H-1B program.

 

What Are the Criteria for Specialty Occupation for an H-1B POSITION?

 

8 CFR 214.2(h)(4)(iii)(A) requires for H-IB petitions involving a “specialty occupation” that the position meet at least one of the following criteria:

a.            A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

b.            The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that only an individual with a degree can perform it;

c.             The employer normally requires a degree or its equivalent for the position; OR

d.            The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

At least one of these four criteria must be established (legal standard is “preponderance of the evidence” which means that something has been shown that it is more likely than not) in order to meet the specialty occupation standard.  An important note, discussed in more detail below, it that it is not enough that the position merely requires attainment of a bachelor’s degree. The degree must be in a “specific specialty” or field.

Bachelor’s Degree or Higher in a Specific Field

 

A trend in adjudications of specialty occupation RFEs has been that USCIS adjudicators focus on requiring that even if a position is shown that it requires a bachelor’s degree, it must be in a specific field related to the position.    In other words, proving that a position normally requires a bachelor’s degree is not enough; rather, it must be shown that the position requires a bachelor’s degree in a specific field or a very narrow list of fields.

 

This has proven to be a significant challenge to employers who, due to the nature of their business or services, are able to leverage professionals from various fields. 

 For example, a Management Consultant position can easily require a bachelor’s degree or higher in management, computer science,  law, public administration, and many others.   

This makes it extremely difficult to make a case that a bachelor’s degree or higher in a specific field or higher is normally required.

 

What Kind of H-1B Petitions Are Most Likely to Get the Specialty Occupation RFE?

It is safe to say that few, if any, employers and positions are safe from the specialty occupation RFE.    

 Generally, physicians, professors, engineers, accountants, attorneys, and similar professional occupations are less likely to be scrutinized.     These RFEs are being issued for both in-house and for third-party worksite positions.

 

USCIS consults the Occupational Outlook Handbook (“OOH”) Occupational Outlook Handbook and positions which do not explicitly state that a bachelor’s degree or higher is always required are subject to specialty occupation scrutiny.

 Similarly, positions which may require bachelor’s degree or higher but may accept a wide array of fields of study are also subject to specialty occupation scrutiny.

 

For example, the OOH page for Computer Systems Analysts (SOC 15-1121) indicates that most employers require a bachelor’s degree or higher; however, OOH also indicates that,

 

Some employers prefer applicants who have a master’s degree in business administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate.

Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

 

As a result, an H-1B petition filed under this category is likely to see specialty occupation scrutiny, although, as there are many legal and factual arguments that can be made in an initial filing and during an RFE response to make the case and obtain an approval.

 

Best Strategies to Handle Specialty Occupation RFEs

 

The specialty occupation RFE requires a somewhat subjective judgment by the USCIS adjudicator which means that approvals are impossible to guarantee.

 

Below are some arguments and documents which may be helpful to defend a specialty occupation RFE.  

 

 Stating the obvious, the suitability of these points and argument depend on each individual case and should be altered and adjusted to fit each case’s particular details.

 

OOH, O*NET Online and Other Occupation Databases.    One of the key legal arguments is to carefully analyze the relevant position and occupations databases.  OOH, and O*NET Online are two of the key databases which are used by USCIS adjudicators and often they contain a lot of useful information to demonstrate that a position normally requires a bachelor’ degree or higher in a specific field.  

 

For example, OOH contains a section describing what are normal educational requirements for an occupational category and what are the advancement requirements.    Similarly,  O*NET Online provides statistics on how many percent of people employed in a specific occupation have a bachelor’s degree, master’s degree or others.    Also, O*NET Online describes the normal educational requirements, together with normal training and supervisory requirements.    These pieces of information often allow building a legal argument that a bachelor’s degree is a normal requirements.

 

Project Documentation Demonstrated Complexity of Position: It is helpful to include information and documentation of the project(s) on which the H-1B employee will work.   This can include marketing and business plans, brochures, technical specifications,  requirements, budgets,  project timelines, and similar.  The goal of providing these documents is to explain how the offered position fits within the needs of the employer’s projects and to establish the complexity of the position.   While project documents are often vague and do not name the beneficiary, they help set the stage and describe the beneficiary’s position in more detail.

 

End Client Letters and Related Documentation.   For H-1Bs involving third-party placements you should seek to get documentation from the end client (or middle vendors, if applicable) which would not only be helpful to establish right of control, employee-employer relationship and duration of placement (all points normally applicable to third-party placements) but also to the end client’s requirements for the position and, specifically, that they would need someone with a bachelor’s degree in a specific related field.

 

Detailed Position Description and Duties Breakdown.   This one of the key documents in making the case that the position is sufficiently complex to require, at a minimum, bachelor’s degree in a specific field.   Many H-1B petitions include a job description which often includes generic terms and duties; providing a detailed job description is the petitioner’s opportunity to describe the position in detail.   We all normally provide an extremely detailed and nuanced breakdown of each job duty with specific tasks that are performed as part of each job duty.    We all then take each task and, to the extent possible, tie it to how the task is so complex to require a bachelor’s degree in a specific field.

 

Example of how you would take a job duty and expand into detailed job tasks:

General Job Duty: Determines operational objectives by studying business functions; gathering information; evaluating output requirements and formats.

Detailed Tasks:   Extract data structure and data types stored in current and proposed database;  create data dictionaries that specify data input/output formats; present the data dictionary to Project Tech Lead and Database Architect for approval; Conduct interview sessions with stakeholders from various business function and Subject Matter Experts(SMEs) to understand current business practice and their interactions with the current system;  Gather and document shareholders’ feedback about current processes along with other identified improvement opportunities, and present those to business function leaders for them to make final decision regarding operational objectives.

 

Industry Requirements – Job Postings and Announcements by Similar Employers.     Another avenue to show specialty occupation is to demonstrate that when similar employers hire for a similar position they normally require a bachelor’s degree in a specific related field.     Providing job postings or announcements from similar companies help make this arguments.    However, for this point to work it is important to ensure that the employers are similar to the petitioner (type of business,  industry, employee size), that the position is similar to the sponsored H-1B position, and that the educational requirements are bachelor’s degree or higher in a specific field (or list of fields) that match.

 

CAUTION:   It is very important to avoid job listings which hurt the case for specialty occupations.   We all have seen USCIS specialty occupations denials where an employer included job listings which include a non-specific list of fields, or that a degree lower than a bachelor’s degree is required.   For example, a position requiring “Bachelor’s degree in Computer Science, Engineering, or Business Administration” will probably doom this argument because Computer Science, Engineering and Business Administration are simply too unrelated to be deemed “specific field.”

 

Employer’s Hiring Practices and Standards.    USCIS allows an employer to point to its hiring practices and standards to make the case that in the past (and currently) when they hire for the same or very similar position they normally require a bachelor’s degree or higher in a specific field.     An adjudicator would expect to see educational documents (diploma, transcript, and an evaluation for foreign degree), evidence that the jobs are similar (job description, job offer, position announcements or ads, employment verification letter, petition support letter, and similar), and evidence of hire (W-2, pay records, performance evaluations, and similar this can be a very strong and successful argument for proving specialty occupation.

 

Third-party Expert Opinion.    An additional piece to establish industry hiring practices is an opinion from a subject matter expert.  This opinion letter (from someone who is expert in the relevant field – usually an university professor) makes the case that the position’s duties are sufficiently complex to require a bachelor’s degree or higher in a specific field.    A good expert letter would discuss the employer and its particular business but then would specifically focus on analyzing the detailed position job duties and make the case that (and how), based on the expert’s experience and knowledge of the industry, the duties are consistent with bachelor’s degree in specific field (or narrow list of fields).

 

CAUTION:   It has been found that including an expert letter is helpful for specialty occupation cases to show broader industry practices, sometimes USCIS rejects third-party expert letters because, according to USCIS, the author is not familiar enough with the specifics of the employer and the position.     So the third-party expert letter has to be presented for what it serves best – to show broader industry practices and not employer practices.

 

Also, USCIS may reject expert letters when there is information in the case record which is inconsistent with the findings of the expert.   As a result, it is important to make sure that the expert letter findings match other key case details in the initial H-1B petition and other RFE response items.

Final point of caution – many good agencies which provide such expert letters have seen tremendous demand and workload with some expert opinions taking over a month to produce.    If an expert letter is being sought for an RFE response I may recommend ordering it early.

 

Salary Paid Exceeds Normal Industry Pay.    One of the somewhat unconventional arguments We all often try to make is that the position is sufficiently complex relative to other jobs because the offered salary is higher relative to certain percentage of other similar positions within the same occupational category.    This argument works when the offered salary is in the top tier (at least 50th percentile) of salaries in the same occupation.   You should rely on statistical compensation data for the occupational classification from a variety of government and private industry sources. Obviously, this argument would not apply to all H-1B cases but when it applies, this argument helps you show the complexity of the position relative to other similar job.

 

Wage Level I Salary & Specialty Occupation.         The Wage Level I salary issue was first raised during last year (summer 2017) H-1B cap season.    At that time USCIS questioned, as a separate major point, whether the position described in the position is suitable for a Wage Level I salary in the LCA which is essentially for entry-level positions.    The Wage Level I issue has since not disappeared completely but is now most often included into the specialty occupation RFE issue where USCIS questions whether the entry-level position is consistent with a position requiring a bachelor’s degree or higher.     

 

 

[srini005]

@Kerwin Ross Thanks much for the detail explanation of Specialty occupation RFE

I have few queries I hope you could able to be answerable 

1) New H1-B candidate in USA as H4  dependent visa,one of employer applied H1-B 2018-2019 it got picked and received RFE "Specialty occupation " as per your above comments in my case my empoyer filed as in house project and We couldn't able to show payslip in that case what sort of documents to be submit for RFE

2)Qualification BCA and MCA we don't have any client since it in house project so what type of document we can able to provide instead of client letter,sow 

In addition,Soc code 1199 level 2 wage Guide me on this