By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas
Specialty occupation RFEs are very common now. USCIS gives a very careful look at the job duties of every H-1B petition. Officers are spending more time carefully screening the H-1B job duties to ensure that they meet specialty occupation requirements i.e. officers need to be certain that the job offered to the H-1B individual really does require a bachelor's degree or higher in a specific occupation.
Some occupations are scrutinized more than others because USCIS heavily relies on their go-to guidance, the Occupational Outlook Handbook (OOH) published by the Department of Labor, to determine what jobs require a bachelor's or not. If the occupational handbook states that some positions in the occupational category do not require a bachelor's degree, USCIS may take the position that the job offered in your H-1B petition does not require a bachelor's degree either. So the task to overcome your specialty occupation RFE becomes a task in showing USCIS that your job is one of the other "specialized" jobs in the occupational category that indeed requires a bachelor's degree or higher.
In addition, in determining specialty occupation, USCIS will take a look at the wage level too to see if the job offered really requires the H-1B individual to have a bachelor's degree, or not. As we saw last year, an H-1B salary falling under a wage level one in the submitted labor certification tips USCIS off that the position may be one of those that does not need a bachelor's or higher. Not all is lost if USCIS is questioning your position and saying that your position is not a specialty occupation because of your wage level though. With enough explaining, there is chance.
To share some hope and show that there is chance to overcome a specialty occupation or wage level RFE, I'd like to share a recent approval that I helped one company secure this week.
The case facts:
A Computer System Analyst received a specialty occupation RFE with a level 1 wage issue. USCIS asked us to prove two things: (1) that the position requires a bachelor's degree and (2) that the submitted labor condition application (LCA) corresponded with the position.
How we answered:
We submitted a very detailed job description breaking down each duty. But more importantly, we distinguished the questioned system analyst position from other types of system analyst positions. We explained and specifically submitted evidence that this particular position offered to this individual requires a bachelor's degree because it is a more specialized type of computer system analyst, per USCIS' go-to guidance, the OOH for computer system analysts.
To tackle the wage level RFE issue, we submitted evidence showing that the job was a wage level one job (i.e. an entry level position). This involved submitting company documentation showing that the H-1B employer closely supervises the employee and also documentation proving that their job duties require only a basic understanding of the position as an entry level position under the wage level definition (such as sample job postings from other similar jobs in the same industry).
Overall, tough RFEs do not automatically mean for certain a denial is in your forecast. With a little extra explanation and documentation, an approval may very well be granted. I hope this news cheers anyone facing a little difficulty in their immigration process and reminds that there is hope, even in tough times.