5 Important Issues To Consider In H-1B Specialty Occupation RFEs
Before responding to the Specialty Occupation RFE, you must be aware of the following issues that can determine your response strategy. Whether you are an H-1B visa holder filing an H1b transfer, H1b extension or a student going from F-1 to H-1B status, you should take special care to ensure you are
1. MULTIPLE AVENUES.There is more than one way to establish a job is a Specialty Occupation. Use as many as you can to increase the chances of an approval.
a. Prove to USCIS that a Bachelor’s degree or higher in a specific field is normally a minimum requirement for the H-1B job.
b. It is commonplace in the specific industry to employ people having a Bachelor’s degree or higher in a specific field to perform parallel or similar positions. Utilize job postings, trade publications or the like as proof of industry standards.
c. The petitioner normally requires a Bachelor’s degree or higher in a specific field for this position. Utilize past hiring practices and provide evidence of comparable requirements.
d. The nature of specific duties of the position are so specialized, unique or complex that it requires a Bachelor’s degree or higher in a specific field to perform. We suggest obtaining a third-party expert opinion letter.
2. BEWARE OF JOB DUTY CHANGES.You can elaborate on the job duties of the position already submitted but you cannot change them. Often the H1B RFE asks for more details on the job duties of the position. You can do this by adding sub-tasks and percentages of time anticipated to perform each (if you have not already submitted the percentages of time at the filing stage). You cannot add new tasks or inconsistent sub-tasks at the RFE stage. This is a major risk for F-1 students who are applying for their first H-1B. F-1 may have utilized job duties from their OPT/CPT job that do not have to be articulated in an H-1B framework and as such, may be worded poorly with soft-skills, or with little technical details.
3. NARROWER THE BETTER.USCIS takes a very narrow view of the Specialty Occupation requirement. Stating that too many unrelated degree concentrations qualify for the position is risky and often leads to a denial. When thinking whether a degree is related, consider what department at a university manages the degree. For example, zoology and computer science would be generally unrelated fields. As such, it would be best to avoid stating these two unrelated degrees are the requirements for the job.
4. SALARY MATTERS.In many cases, you may need to address the h1b salary or wage level in the evidence you provide. For example, when providing evidence of comparable jobs at other companies (to show industry standards), keep them in the same wage range to make it applicable, and have experts address wage levels in their opinions. Also, if your LCA is based on a higher wage level, have the experts use this point to strengthen their argument in your favor.
5. GET GOOD EXPERTS.Not all experts are the same. Use good experts who provide detailed analysis. Often analysis using independent sources and materials are needed, not just the statement or opinion of the expert. Weak expert opinions without thorough analysis are a waste of money and often dismissed by USCIS, and can lead to a denial.