How to Handle Specialty Occupation H-1B RFEs?

Our readers and clients who have been involved in the H-1B program and especially over the last 12+ months must have experienced or at least heard about the “specialty occupation” requests for evidence (RFE) which have been and continue to be issued by USCIS.   Our office has been receiving and handling numerous such RFEs and we have been working with clients and with the broader immigration attorney community to formulate a strong strategy for responding to this kind of an RFE.

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 have seen such RFEs for many years.  However, starting 12 months or so, and especially since the 2017 H-1B cap season, we have seen a dramatic increase in the frequency of such RFEs.   We are seeing firsthand and we are also hearing reports from clients and readers that a significant percentage of H-1B petitions are facing RFEs focused on specialty occupation (among other points).

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:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. 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;
3. The employer normally requires a degree or its equivalent for the position; OR
4. 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”) 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 we discuss below, 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

Our office has been in close contact with USCIS, other practitioners and affected clients and we have been working on a strategy to handle this kind of RFE responses.      The good news is that our  focus on this type of cases and multiple years of handling H-1Bs (and their RFEs) has allowed us to understand what kind of documents, facts and arguments are likely to work to prove specialty occupation.    The bad news is that 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.    We have found that 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 we also 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.   Based on our experience having handled hundreds of specialty occupation RFEs,  in our opinion this is 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 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 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 we 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 data base;  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 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).    We have found that when presented and organized well, 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:   While we have found that including an expert letter is helpful for specialty occupation cases to show broader industry practices,  we have found that 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, we have seen USCIS 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 we recommend ordering it early.

Salary Paid Exceeds Normal Industry Pay.    One of the somewhat unconventional arguments we 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.   We 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, we have that this argument helps us 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.      Please see our Wage Level I RFE article on detailed description and strategies on how to address this point.

Attorney Assistance with Preparing RFE Response

We have been very deeply involved in specialty occupation cases and, having handled hundreds of such RFEs, we feel that we have been able to understand the facts and documents USCIS adjudicators expect  to see in order to issue an approval.    Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFEs.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.
Webinar Discussion

Our office has been very active in understanding the reasons behind this kind of RFE wave and discovering the best ways for responding.  We offer webinar session where attorneys of our firm discuss and analyze the Specialty Occupation RFE issue and offer suggestions on how to prepare a strong response.

Specialty Occupation RFEs: Tips and Strategies for Navigating This Complex Issue

Conclusion

The fact that the specialty occupation RFE has been so widespread and has targeted all kinds of employers and positions is an indication that this issue will likely linger for months or even years.   The H-1B adjudication process includes RFE response time, followed by possible appeal or motions to reopen or reconsider of a denied petition, followed by possible additional litigation.   In the meantime, we caution employers who are affected by the specialty occupation RFE wave (or who are preparing new petitions) to carefully consider and prepare their government submissions.

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including specialty occupation RFEs.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topic.