If any of you received a RFE on your H1b filing and one of the issues raised in the RFE is about Specialty Occupation, then you are not alone. Very often we come across these types of RFE. One way to avoid such a RFE is to, upfront at the time of filing the H1b, present a good case so that there will be no specialty occupation issue raised by USCIS.
What a specialty occupation RFE basically means is that USCIS is asking the H1b employer to prove that the position for which the H1b was filed requires a bachelor’s degree in a specific major. I mean “specific major” and not “any major”. If an offered position is such that a people with multiple/different majors as part of their bachelor’s degree may qualify then the position is not specialty occupation. Let us take an example of Business Analyst. USCIS may argue that this position is not specialty occupation since a person with either a major in Computer Science or major in Business will qualify.
How do you overcome a specialty occupation RFE?
We suggest do the following:
You must review the job duties listed in the H1b petition and expand those job duties and explain how complex these duties are and that to do those duties you typically require a bachelor’s degree in a specific major.
You research the websites of different universities in USA and look at what they are talking about the job prospects of doing a particular course. Many times, you will find that the university website will say that if you do a major in Data Science then you can become a Data Analyst. Print out relevant pages of all these websites and let USCIS know that it is typical in USA to require a bachelor’s degree in data science for the position of Data Analyst.
Look into Occupational Outlook Handbook (OOH) and see what they have to say about the required qualification for the offered position. If the position is Software Developer, then it is easy to refer USCIS to OOH and say that the position is specialty since OOH says the required major is bachelor’s in computer science and the position offered is very similar to the position of Software Developer listed in OOH. OOH is like a double-edged sword. It works well when the OOH says the requirement is bachelor’s degree in a specific major and it work against you when a position is listed in OOH and it says the requirement can be Bachelor’s in multiple majors ranging from Computer Science to any engineering. So as legal practitioners we take great effort in analyzing a role before selecting the SOC code. First, we look at OOH and if we feel OOH will go against the client with regard to specialty occupation, we look at some alternates. So, strategizing the case with the correct job title, SOC code and highlighting the right duties are extremely important for success of a H1b petition.
Go to all job boards like Dice, Monster, Zip recruiter, indeed etc. and type the H1b job title. Say if the position in issue is Project Manager and the beneficiary has a Bachelor’s in MIS then you must selectively look at advertisements which say that the position of Project Manager requires a major in MIS / Compute Science / related field. Note that you cannot select an advertisement which says Bachelors in MIS / Business Administration. Business Administration is very different from MIS or Computer Science and USCIS will claim that since the industry standard is to accept varied major the position does not qualify for specialty occupation.
H1b employer can also investigate the current and past hiring practice to see if they had anyone working or in the past worked in a position similar to the offered position. Next step is to see if these people who hold similar positions or held similar positions had a major in Bachelors or master’s level which is the major you required for the offered position in the H1b. Say your requirement for the position of Data Scientist was Bachelor’s degree in Statistics then you look to see if you had anyone working or worked in the past as Data Scientist and they had a Bachelors or Masters in Statistics. You gather a list and then present to the USCIS proof of employment of all these individuals by way of enclosing copies of their degree, transcripts, pay slips and job duties. You are basically arguing that it has been your practice to require a particular major for a position in the past and present.
One can also get statements from senior professionals in the field of offered position. The statement from these senior professionals should say that they reviewed the position/duties and based on their years of experience in the field they can vouch that the position requires a Bachelor’s in a particular major.
Another option is to get letters from companies like the H1b employer and these companies can state that it is customary for them to hire a person with a specific major for a position being offered in the H1b. Say for example the position in question is Technical Recruiter and the requirement stated in the petition was Bachelor’s in HR or related field. Then the company which is akin to the H1b employer can give a letter stating that for the position of Technical Recruiter they also require a Bachelors in HR.
Lastly, an expert opinion from an academician that the offered position requires a specific major will help. These are called position evaluation. These are expensive and I will say one should use it judiciously based on the overall evidence you have gathered. If you are not able to prove specialty occupation based on many of the above grounds like industry standard or past hiring practice or reference letters then position evaluation by an academic professor becomes very crucial. These letters are issued in the letterhead of the universities where the Professor is employer. These are obtained through credential evaluation agencies like Trustforte, Park Evaluation to name a few.
I can say you don’t have to prove specialty occupation based on all the above factors. If you can prove well and good or else go with whatever is available. Even if you argue based on complexity of the position, requirements of other companies by way of job ads and enclose a position evaluation that will suffice. Success will depend on case to case. Software Developer can be easily proven to be a specialty occupation versus having to prove IT Support Analyst to be a specialty occupation. Bottomline, we can say that strategizing a case before filing the H1b is key so that you avoid having to face the specialty occupation RFE at a later stage.
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