Avoiding a Request for Evidence (RFE) on the H-1B Specialty Occupation

Practice Areas

By: Michelle Lobo

USCIS has issued record numbers of Requests for Evidence (RFEs) on visa petitions ever since Trump issued his “Buy American, Hire American” Executive Order in April 2017. H-1B petitions, especially those for IT workers, appear to be most severely affected. One of the most common issues raised in an H-1B petition RFE is related to the definition of “Specialty Occupation.” This definition has become stricter in recent months. It is critical that IT companies work closely with an experienced attorney to protect against this type of RFE.

How the H-1B Specialty Occupation Definition Has Changed

It is no longer enough to simply show that a bachelor’s degree in a relevant field is normally required for the position. Now employers must demonstrate that the position requires a bachelor’s degree in a specific field of study, with USCIS increasingly narrowing their interpretation of “specific.”

Because very few employers today require only one specific type of degree as a minimum for a position, most employers are at risk for a Specialty Occupation RFE. Even engineers now receive Specialty Occupation RFEs because of the many types of engineering specialties, such as electrical, mechanical, civil, computer, and so on.

How to Demonstrate a Role is a Specialty Occupation

It is imperative to consider a prospective Specialty Occupation RFE at the start of any H-1B petition preparation. Employers should first work with their attorney to determine the best-suited Standard Occupational Classification (SOC) code.

It is also important to consider all other employees engaged in a similar role for the same employer, and their qualifications. For instance, an employer cannot state that it requires a specific bachelor’s degree in the H-1B petition if it employs another individual in a similar position with different qualifications. In the case of third-party placements, employers should review the qualifications of other contractors in the same position with the end-client.

Another critical element of the petition is the proposed job duties. These should be detailed and effectively convey the complexity of the position. Whenever possible, the relationship between each task and specific course work from the H-1B employee’s related bachelor’s or master’s program should be drawn out.

Conclusion

Employers should consult with a seasoned legal professional at the outset of the H-1B petition process, before a Specialty Occupation RFE has been issued. This ensures that the proper groundwork is laid for a successful petition. Contact an experienced Chugh, LLP attorney today for assistance.