Arguing Specialty Occupation RFEs
Have you received an RFE on Specialty Occupation, where USCIS says the jobs does not appear to qualify. New case law gives us a better chance than ever to succeed on this issue.
A proposed new standard for specialty occupationPerhaps it is misleading to say this is a new standard, but what we do have is case law which can be invoked to argue that to qualify as a specialty occupation, all you really need is to show that it is typical for companies to require a degree (which means over 50% of employers hire workers with a degree), and that the job can't be done with just any degree.
Consistent with the current caselaw presented, we propose the following test to evaluate specialty occupation under subclause 1:
1) Is the job found in the OOH? If yes, then
i) does it state a degree requirement that is ‘common/usual’ or state what ‘most’ degrees professionals in the field possess, and
ii) does it inherently provide some limitation on what degrees commonly qualify a person for this job.
2) If there is only an O*NET report, does it:
i) under Job Zone, state “most of these occupations require a four-year bachelor’s degree,” and
ii) when looking at the “knowledge” and “skills” section, does it inherently provide some limitations on what degrees qualify a person for this job? Can some nexus be shown between the stated degree requirement and the knowledge and skills section?
If the answer is yes to the sub-questions listed in either case, then the position should be deemed to be qualified as an H-1B caliber specialty occupation without further analysis.
The caselaw to cite is Info Labs Inc., v. USCIS, 1:19-cv-00684,6-10 (D.C. March 31, 2020) and 3Q Digital, Inc. v. USCIS, 1:19-cv-00579 (D.C. March 6, 2020).
DisclaimerIt would be ideal to have a professional prepare the RFE response, and note that these cases are only current as of this guide's date of publication. Things may always change, and USCIS may also not necessarily agree. This guide only gives you one argument to support your case.