H1B visa is the most common work visa that foreign workers use to work in the United States. However, under USCIS’s tightened immigration policy in the recent years, it is getting more and more challenging to get H1B approvals. According to USCIS statistics, in 2016, H1B RFE percentage was around 20%, but the number has dramatically increased to 60% in 2019. In addition, the H1B approval rates in 2016 was over 90% but dropped to 70% in 2019. The changes are not only reflected in H1B sponsored by small companies, but also large ones as well. Even the top 10 largest companies that utilize co H1B workers, including Microsoft, Amazon, Apple and big consultancy firms, are also under risk of H-1B denial. For example, Deloitte Consulting, a CPA firm providing professional services, has 30% denial rate in the first quarter of 2019.

We can clearly see the challenges in H1B based on these statistics. Among all the reasons that USCIS uses to deny H1B petitions or request for additional evidence, the top reason is that “the petition did not establish that the position qualifies as a specialty occupation”. Specialty Occupation has become an important issue in H1B cases. 

      1. Definition of Specialty Occupation-INA § 214(i)(1), 8 CFR § 214.2(h)(4)(ii) 

Under INA § 214(i)(1) a “specialty occupation” is defined as an occupation that requires: (1) Theoretical and practical application of a body of highly specialized knowledge, and (2) 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. The regulation in8 CFR § 214.2(h)(4)(ii) uses the same languageas INA § 214(i)(1) but elaborates further. It specifies that the highly specialized knowledge should be in the fields of “human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts”. The addition does not make much of a distinction as it leaves it open-ended with the language“ including but not limited to”. Occupations beyond the listed field may still be regarded as “Specialty Occupations” as long as it meets the requirements of INA § 214(i)(1).

     2. Standards in Determining if a Position Meets the Requirements of Specialty Occupation 

As the definition is too broad, 8 CFR § 214.2(h)(4)(iii)(A) further addresses that to qualify as a specialty occupation, the position must meet one of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
• 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 it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Although the CFR regulates that a position only needs to meet one of the above criteria, in practice it is not sufficient. As interpreted by Fifth Circuit Court of Appeals, the four criteria are only necessary conditions, but not necessary and sufficient conditions to establish that the occupation is a specialty occupation. If the petitioner can provide supporting documents under preponderance of evidence standard, USCIS usually will accept the petitioner’s claim that the position is in specialized field.

    3. Factors That USCIS May Consider

• O*NET Job Zone 

USCIS may use the job zone information on O*Net as a reference in its determination. A Job Zone is a group of occupations that are similar in: how much education people need to do the work; how much related experience people need to do the work, and how much on-the-job training people need to do the work. On O*Net, job zones are divided from 1 to 5. Job Zone 4 and 5 are relevant to H-1B cases. Job Zone 4 means “most of these occupations require a four-year bachelor's degree, but some do not.” Job Zone 5 means “most of these occupations require graduate school. For example, they may require a master's degree, and some require a Ph.D., M.D., or J.D..”  

USCIS usually does not consider a job in Zone 1 or 2 as a specialty occupation. For a position in Job Zone 3, if the petitioner can prove that it meets criteria of specialty occupation, USCIS may agree with it, but it will be more challenging than those position in Job Zone 4 and 5.

Example: The job position of Software Developer is under Job Zone 4 (Considerable Preparation Needed). In contrast, the job position of Electronics Engineering Technicians is under Job Zone 3, which only requires Median Preparation. USCIS is more likely to question if the technician job is a specialty position, and its chance to receive an RFE or be denied is higher.

• Wage Levels

One of H1B’s requirements is that the beneficiary must be paid at least aprevailing wage. There are four levels in wages: Level I entry level, Level II qualified level, Level III experienced level and Level IV fully competent. H1B sponsors should pay Level I wages to the beneficiary at a minimum. 

Under DOL’s guidance, an H1B beneficiary’s wage level should be commensurate with the complexity of his/her work, independent judgment required, and amount of close supervision received as described in the employer's job opportunity. Usually if an H1B beneficiary gets paid more, it is more likely that his/her work is complex and requires special knowledge, and thus, USCIS will be more likely to regard the position as a specialty occupation. 

Example: A is offered a job offer of Marketing Analyst and offered annual salary of $47,000, which is in wage Level I. B is offered the same position but his annual salary is Level II $68,000. It is easier to convince USCIS that B’s position is a specialty occupation than A because the offered wage is higher.

• Job Description

Job description is another element that USCIS will reply on. The more complex the job description is, the more likely that the proffered position can be deemed as a specialty occupation. This is the reason why we always recommend that our clients should provide detailed and specialized job description in H1B document preparation. For example, to apply for an H1B with position of Project Manager, if the job description is too simple (such as coordinate with vendors to support projects and track project costs in order to meet budget), USCIS is likely to think the position does not require a bachelor or higher degree or equivalent to qualify for the position. The H1B petitioner may enhance the job duties with a description of what the projects are about, what kind of specialized knowledge the beneficiary needs to complete the work, etc. That will definitely increase the chance that USCIS considers the position asa specialty occupation

• Degree Associated With The Position, Industry’s General Requirement and Employer’s Hiring History 

In addition to proving that a position’s job duties are so complex that it requires a bachelor or higher degree or equivalent, it is also required to prove that the knowledge required to perform the duties is usually associated with such degree. A H1B beneficiary’s degree should be associated with his/her job duties so that it qualifies him/her for the position, and it is a common practice for employers to require the degree in the industry. Taking Human Resources Manager as an example, the position usually requires a bachelor’s degree. According to Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH), the candidate for the position may earn a bachelor’s degree in human resources or in another field, such as finance, business management, education, or information technology. Other degrees, such as law-related or computer science degree, are not associated with the position and will not help in such H1B petition. 

Furthermore, USCIS also weighs if it is a common requirement in industry to hire an employee with bachelor or higher degree, or equivalent degree to do the job and if the employer’s employees in similar position have such degrees. 

    4. A Sample of H1B RFE Regarding Specialty Occupation 

Taking one of my firm’s recent H1B case as an example. The client, a technology company, sponsoredone of its employee forH1B in the position of a Senior Software Engineer. The employer is small and the position is new. USCIS issued an RFE targeting on the Specialty Occupation issue. After reviewing the case background and communicating with our client, we felt optimistic about the case. Our attorney worked with the client on preparing  very detailed and technical job duties, including the projects that the beneficiary has worked and will work on. Moreover, in petition letter, we emphasized that the employer pays the beneficiary a Level III wage. The case was approved successfully within one week after we submit the RFE response. The RFE in this case is a standard H1B RFE focusing on Specialty Occupation. It requires the petitioner to prove that the position must meet at least one of the two criteria, which follow as below. 

The first criterion is that Degree is Normally Minimum Requirement.USCIS suggests the petitioner provide relevant documentation from an authoritative career resource, such as the Occupation Outlook Handbook (OOH), to list the duties, work environment, education, training, skill and other qualification requirement for the occupation. Include a statement describing how the particular position relates to the occupation listed in the career guide and how the information in the career guide demonstrates that a bachelor’s or higher degree or its equivalent is normally the minimum requirement for the particular position. 

If the OOH’s webpage indicates that an H1B position must have a bachelor’s degree, the H1B petitioner can provide such information. In addition, an Expert Opinion Letter with a description of the questions in USCIS’s RFE can help address USCIS’s concern. To provide such letter, finding a qualified expert is important. Otherwise, USCIS may not recognize the letter and deny the H1B case. 

If the petitioner cannot prove the first criterion, it usually focuses on the second one. The second criterion includes four conditions (A to D). The petitioner should try to meet these conditions to claim the proffered job position is a Specialty Occupation.

A.  Degree Common to the Industry

The evidence to prove this criterion includes but not limited to: (i) job posting showing a degree requirement is common to the industry in similar position of similar organization; (ii) letter from an industry-related professional association indicating that similar organizations routinely employ and recruit only individuals with bachelor or higher in specific specialty, or its equivalent for parallel positions; and (iii) letter or affidavits from experts attesting the same with (ii). 

Among these, job posting is the easiest one to be collected. The other two may be difficult for some fields. 

B. Position So Complex or Unique

The petitioner may provide the following documents as evidence in this regard: (i) letters from an industry-related professional association indicating that the particular position is so complex or unique that it can be performed by only individuals with bachelor or higher in specific specialty, or its equivalent; (ii) letter or affidavits from an expert in the industry attesting the same with (i); and (iii) Copies of trade publications or other articles within the industry which demonstrate the same with (i).  

C. Employer Normally Requires Degree or Equivalent 

USCIS suggests petitioners to provide the following documents: (i) the petitioner’s organizational chart showing the hierarchy and staff levels with corresponding educational and experience requirements for the position; (ii) present and past job postings or announcements for the proffered position showing the petitioner requires applicant to have a minimum of a bachelor’s higher degree in a specific specialty or its equivalent; (iii) petitioner’s past employment practice for the position; and (iv) job offer letter or posting listing the educational, experience, training and skills requirements of the proffered position. 

D. Nature of Specific Duties So Specialized and Complex

To support this point, the petitioner can provide: (i) an explanation of specific duties and how the nature of these duties are specialized and complex, that they are usually associated with the attainment of bachelor or higher degree in a specific specialty or equivalent; (ii) letter or affidavits from experts attesting that the nature of the petitioner’s products and services are so specialized and complex that a bachelor or higher degree in a specific specialty or equivalent; and (iii) trade publications or other articles about the petitioner that highlight the nature of its product and services and support the same purpose with (i) and (ii).

The above RFE letter is a typical letter emphasizing on specialty occupation. The proposed documents are only USCIS’s suggestions. It does not matter if you cannot provide all of them. USCIS also encourages H1B petitioners to provide alternate evidence that they think may help the case.  

In the current environment, it is more and more difficult to successfully apply for H1B. If your employer sponsors you for aH1B petition, you may want to grasp the opportunity and prepare your H1B as best as possible. Working with a professional attorney will maximize your chance of receiving an H1B approval. At Zhang & Associates, our attorneys have represented thousands of H1B petitions in the past years. Our experienced immigration attorneys provide customized services to our clients in representing their H1B cases. If you have questions about H1B or would like to have a free evaluation, you are welcome to contact us at info@hooyou.com or 713-771-8433.

Resource:

https://www.nafsa.org/_/file/_/amresource/rfeh1b2017.pdfhttps://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/JUL082015_08D2101.pdf 
CFR: https://www.ecfr.gov/cgi-bin/text-idx?node=se8.1.214_12 

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

H-1B Visa: Temporary Workers in "Specialty" Occupations H-1B Requirements H-1B Services We Provide Applying for an H-1B Visa H-1B Advantages H-1B Limitations H-1B Documentation List Extending H-1B Status Beyond Six Years H-1B1 Subcategory: Free Trade Agreement H-1B2 Subcategory: Department of Defense H-1B3 Subcategory: Fashion Models Guidance on H-1Bs for Nurses H-1B Premium Processing and Related Issues H-4 Visas: Spouses and Children of H-1B Workers Frequently Asked Questions about H-1B Visas Filing Fees Attorney's Fees

The Cap USCIS Guidance on H-1B Cap Exemptions After the Cap Off-site Employees "Recapturing" Unused Time H-1B-Dependent Employers "Benching" H-1B Workers The Portability Rule Maintaining H-1B Status during Corporate Changes H-1B vs. O-1 Issues Relating to F-1 and OPT Issues Relating to Work, Travel, and Adjusting Status Memo: H-1B Status during the I-485 Waiting Period Memo: Be Aware of Abandonment Frequently Asked Questions about I-140 and I-485 Filing

 

Updated 04/26/2017