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H-1B

RFE 101: Specialty Occupation (H-1B)

Previously, the attorneys of Reddy & Neumann wrote an article concerning requests for evidence (“RFE”), diving into what they entail, the process involved in adequately responding to these requests from USCIS, and how to avoid getting one. Although, the basic process for responding to a request for evidence is largely the same for each visa type, there are some issues that may come up with certain visa types that will not come up with others. This article will primarily concern itself with the most common visa type to receive RFEs: Specialty Occupations Visas, namely, H-1B visas. This article primarily deals with the general concepts of the RFE as they pertain to the specialty occupation visa, also known as a H-1B, what it looks like, how to respond to an RFE, and ways to best avoid receiving one in the future if you wish to file for an application for a new visa.

What Is A Specialty Occupation Visa?

An H-1B visa is a visa that applies to people who work in specialty occupations. A “specialty occupation” is defined in the Immigration and Nationality Act as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) 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.” Additionally, the occupation will qualify as a specialty occupation as evidenced by the completion of one of the following criterion:

  • Bachelor’s or higher degree or its equivalent is normally the minimum for entry into that position OR
  • The degree requirement is common in the industry across similar parallel position in similar organizations or the job is so complex that it can only be performed by an individual with a degree OR
  • The employer normally requires a degree or a its equivalent for the position OR
  • The nature of the specific duties are so specialized and complex that the knowledge to be able to perform them are usually only attained by the completion of a bachelor’s or higher degree.

Additionally, there are a set of personal requirements that an individual needs to only meet one of the following criteria to qualify to perform services in a specialty occupation.

  • Hold a U.S. bachelors or higher required for the specialty occupation from an accredited university or college OR
  • Hold a foreign degree that is the same equivalent to a U.S. bachelor’s or higher required by the specialty occupation from an accredit university or college OR
  • Hold an unrestricted license, registration, or certification that authorizes the individual to practice the specialty application and to immediately begin working in the specialty in the state.

It is due to these particularities that it is the most common visa type to receive an RFE. It is up to the petitioner to prove that the criteria for establishing a specialty occupation have been met and thus, they bear the burden of proof. As a result of this specificity, an RFE may be issued for a number of reasons.

What is a Specialty Occupation RFE?

                As stated in our previous article, an RFE is a written request made by USCIS to request more information and/or documentation pertaining to your application. It does not mean that your application has been denied but rather that one more step is needed to be completed before a decision may be rendered. Nor is an RFE similar to a NOID, or “Notice of Intent to Deny”, which indicates that USCIS is anticipating denying your application unless you are able to sway their decision otherwise. A specialty occupation RFE differs from a traditional RFE in that it is an RFE that is issued on grounds of a specialty occupation visa and, thus, may have different requests than the traditional RFE.

Like a generic RFE, a specialty occupation RFE is made up of five parts: (1) the facts of your case; (2) the applicable law under which they are requesting the documentation; (2) the list of evidence you have previously submitted to USCIS with your initial application; (3) a list of evidence that they believe you are missing; and (4) a deadline for your response to the request accompanied by an explanation of the consequences of your failure to do so. Generally, it is always a good idea to double check the list of evidence submitted against the list of evidence that is missing as often it may just be a matter of USCIS simply overlooking a document that you have already submitted to them. However, if after checking the list and you are still missing a requested document, it is paramount that you respond with the requested documentation by the deadline. If you do not respond by the deadline, USCIS will either conclude that you have abandoned your application and send you a denial or go ahead and decide your case without the additional information requested. So, it is vital to comply with the deadline as provided.

How to Respond to an RFE

As with a most other RFEs, your first step when responding to a Specialty Occupation RFE should always be to carefully read the entire request first to ensure that you are responding with the proper evidence and documentation requested. You will only have one shot to reply to any and all remaining questions from USCIS as an RFE will usually only be issued once so it is paramount that you know exactly what they are asking for.

Next, you should review your original submissions and ensure that USCIS didn’t overlook one of your submitted documents. If you find that is the case, you can photocopy the original document and include it with your RFE response alongside of a note stating that they came from the original documentation.

Once you have double checked what has been requested, the next step is compiling the requested documents into a submission package and submitting them.

Reasons for Getting an RFE on Specialty Occupation Grounds

Some of the more common reasons USCIS may issue an RFE on specialty occupation grounds are as follows:

  • Missing evidence
  • Missing proof of legal entry
  • Missing translation of documents
  • Inability to determine specialty occupation
  • Inability to determine how a foreign national’s skills pertain to the requesting business
  • Lack of degree in specified field
  • Missing proof of experience
  • Inability to prove employer-employee relationship
  • Issues with the LCA
  • Inability to prove availability of work
  • Inability to show maintenance of status
  • Inability to establish that the beneficiary was eligible for AC21 benefits or was otherwise eligible for an H-1B extension as it appeared that the H-1B beneficiary had reached the six-year limit.
  • Unpaid fees
  • Itinerary issues
  • Missing explanation of criminal history

This list is not comprehensive but does contain a good deal of issues that may spark USCIS issuing an RFE in the event that you are applying for a visa on specialty occupation grounds.

How to Avoid a Specialty Occupation RFE

                While RFEs may be triggered for any number of reasons, we have a few general tips that may help you avoid receiving one in the future. This list deals primarily with Specialty Occupation reasons and, thus, should not be misconstrued as a complete list. For a more detailed list of more common issues encountered in drafting an RFE response, feel free to refer to our previous article on RFEs for reference (https://www.rnlawgroup.com/rfe-101-a-guide-to-the-basics-of-the-request-for-evidence/).

  • It is recommended by USCIS that employers provide a list of duties, roles, responsibilities, and educational and experience requirements necessary to perform the job. The job description should provide a link between the work to be performed and the educational requirements for the position. This will help to prevent any misunderstanding about the position or its qualifiers.
  • An employer must be able to demonstrate that it will maintain the right to control the H-1B beneficiary’s work for the duration of the requested period of employment. An employer can do that by submitting copies of the employment contract and/or offer letter detailing the terms and conditions of the employment as proof that it will maintain a valid employer-employee relationship with the H-1B beneficiary.
  • If the H-1B beneficiary that the employer wishes to onboard does not have a bachelor’s degree in the specialty field, an employer may consider getting a combined education and experience evaluation for a related field of study to corroborate the beneficiary’s qualifications to fill the position. This evaluation may be obtained in a number of ways including but not limited to: credential evaluation services; a determination by USCIS that the degree required by the specialty occupation is equivalent and has been acquired through a combination of education; proof of certification or registration from a nationally accredited professional association or society for the specialty that is well-known to grant certification; or a recognized college-level equivalency examination results or special credit programs. It is also suggested that employers include a statement explaining how the unrelated degree relates to the job offered to the H-1B beneficiary in order to prevent any confusion.
  • In order to avoid issues concerning maintenance of status, the beneficiary may provide copies of previous Forms I-94, Form I-797 approval notices, paystubs, employment verification letters, and travel itineraries, among other things as documentation that show their status and may act as proof that they maintained status during their stay.
  • An employer’s LCA must properly correspond with the position offered to the H-1B beneficiary, specifically in regard to the job title and wage level selected by the employer. It is suggested that employers provide a detailed description of the skills, education and experience required to perform the job as well as a copy of the obtained LCA to avoid issues concerning whether a properly certified labor condition application was obtained.
  • To avoid issues concerning whether a party is eligible to go past the six year H-1B limit, an employer may submit copies of the approved labor certification or Form I-140 to prove that the H-1B beneficiary qualifies for an extension. They may also submit entry and exit stamps and trip itineraries to attempt to recapture a beneficiary’s time spent outside the United States.
  • To prove that a steady workflow exists, an employer may provide copies of signed contracts, detailed work assignments, and work orders signed by end-user clients, among other things.
  • To avoid getting triggered by itinerary issues, an employer may simply provide a more detailed itinerary, expanding the required services and locations of the previously provided document.

This is a general overview of the specialty occupation visa RFE, and there are many other small nuances that may ultimately result in drastically different outcomes. It is advised that you consult an immigration attorney today to find the best options for you. If you have any questions regarding this process or are in need of guidance in how to best answer an RFE, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Avery Krushall, Staff Attorney

 

 

 

 

Avery Krushall is an Attorney at Reddy & Neumann P.C. Avery earned his J.D. from the Thurgood Marshall School of Law in 2018 and spent time working as a criminal prosecutor before entering the practice of immigration law, a field that he is both passionate about and intrigued by. He believes that while the immigration process is one that is complicated and lengthy, it is his and every other immigration attorney’s duty to help simplify the process and guide their clients through. Avery strives to provide his clients with impeccable service, professionalism, and an open line of dialogue for any questions that they may have on their journey to achieving their goals. Just as his favorite quotation states, Avery believes that a journey, like immigration, which may seem like a thousand miles long, begins with only a single step.