Bucking the Trend: Five H-1B Processing Trends in 2014 and Solutions for Success

The true case examples used below are used for illustration purposes. Case results depend upon a variety of factors unique to each case and case results do not guarantee or predict a similar result in any future case undertaken by a lawyer.

Do you want to avoid unnecessary expenses and delays with the H-1B process? The H-1B regulations themselves do not change on a regular basis. However, the particular issues that USCIS focuses on in reviewing H-1B petitions are constantly changing. Identifying these issues and proactively addressing them is critical to the success of any given H-1B filing. Read on to learn more about five key issues USCIS is focusing on now, and strategies to successfully address them upfront.

1. Employer-Employee Relationship.

This has been an on-going issue for several years now, especially for consulting or staffing companies involving third-party placements. We have written about this issue before, and employees and employers can find more guidance on this issue here and here.

2. Is the H-1B position a specialty occupation position?

The H-1B regulations require that the H-1B employee “perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the US.”

What does this mean?

The H-1B regulations say that a position qualifies as a specialty occupation if the position meets at least one of the four prongs below:

1) A bachelor’s degree or higher or equivalent is normally the minimum requirement for entry into the particular position.

2) The degree requirement is common to the industry in parallel positions among similar organizations or the employer can show that its particular position is so complex or unique that it can be performed only by an individual with a degree.

3) The employer normally requires a degree or its equivalent for the position, or

4) The nature of the specific duties is so complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Basically, USCIS must be convinced that the position usually requires a bachelor’s degree or equivalent, and is not administrative in nature.

A few issues:

- USCIS commonly looks to the Occupational Outlook Handbook (OOH) to determine the “normal minimum requirement for entry into the position” (prong 1 above). If the OOH does not indicate that a bachelor’s degree is required for the position, often USCIS will issue a request for evidence asking for additional documentation that the position is a specialty occupation.

- Further, the OOH language regarding the degree requirement must be clear. That is, if the OOH entry says that most employers prefer a bachelor’s degree, USCIS will not accept this as evidence that the position is a specialty occupation, and will also use that to argue that some employers do not strictly require the degree, and therefore it is not a specialty occupation.

- Finally, if the OOH does not specify that the major field of study is in a specific, limited area, USCIS will often say that the position does not quality as a specialty occupation because the required degree is not a “body of highly specialized knowledge.”

Success Strategy:

- Make sure that you are filing for a true H-1B position – that is, one that truly requires a minimum of a bachelor’s degree in a specific field of study. An experienced immigration attorney can help you make this determination.

- Make sure the duties listed in the petition are H-1B duties – that is, complex duties that only a person with a bachelor’s degree could complete. An H-1B petition that includes duties that are administrative in nature, for example, will not be approved. Of course, all information included must be accurate and truthful.

- Just because your H-1B position is not a “traditional” H-1B position does not mean it cannot be approved. We have successfully used the following types of evidence to establish that the position is a specialty occupation:

  • Detailed job descriptions, including detailed explanations of any unique aspects of the employer’s business model that makes the position more complex than it might be at another employer.
  • Job postings from similar employers for the position that show that a minimum of a bachelor’s degree in a specific field of study is required. Note: the company posting the job must be of a similar size, and the degree must be required, not preferred.
  • Affidavits or letters from employers of a similar size, who have hired employees for this particular position before (again, the employer must be a similar size to the petitioner).
  • Affidavits of expert opinion letters from experienced professionals in the field.
  • Documentation that the employer has hired employees in that position before, and that those persons have/had a bachelor’s degree in a specific field of study. We have even shown that the positions above and below the position in question require a bachelor’s degree.
  • Copies of ads previously posted by the petitioner for the position in question, which lists a bachelor’s degree in a specific field of study as a minimum requirement.

3. Is the degree closely related to the proffered position?

This issue is closely related to the topic of specialty occupation, discussed above. As we mention above, the required degree must be in a specific field of study. Further, that field of study must be closely related to the position in question. So for example, if the position is computer systems analyst, a psychology degree is not going to be considered closely related or relevant for the position.

Success strategy: We have found that in real life, some employers hire employees who do not have degrees that are directly related to the position in question. Ideally all H-1B candidates would have directly-related degrees. However, if a candidate does not, we are often able to obtain a credentials evaluation based on a combination of education and (relevant) experience. That credentials evaluation will then show that the combined education and experience are relevant to the position, satisfying this requirement

4. Combination of education and experience.

As suggested above, it is acceptable to use a combination of education and experience, either because the actual degree is not considered equivalent to a U.S. degree, or because the degree is not in a related field of study. However, USCIS has started adhering strictly to the regulations, which have strict requirements for such an evaluation. USCIS now will usually not accept just a standard credentials evaluation, but instead requires two expert opinion letters, or other extensive documentation.

Success Strategy: Obtain a credentials evaluation that meets the regulatory requirements, and be sure that the petition cover letter (or RFE response) outlines exactly how the evaluation meets the regulations. While these evaluations are not inexpensive, obtaining one up front will reduce the chance that you will have to address the issue on RFE, which increases cost and processing times.

5. Is the LCA occupation code appropriate for the job title of the proffered position?

Historically, USCIS has rarely questioned the occupation code used on the Labor Condition Application (LCA). However, USCIS is now looking at this issue more often, and issuing a request for evidence when the officer believes that the incorrect code is used. In some instances, USCIS wants to make sure that the employer is not using an LCA code that has a lower prevailing wage requirement. For example, if the H-1B position is marketing manager, but the LCA code for marketing specialist is used, USCIS may question this selection in an RFE. Further, USCIS has focused (incorrectly) on the LCA code used, rather than the job title and duties of the position in question, and issued RFEs asking for specialty occupation documentation.

Success Strategy: First, make sure that the correct LCA code is used. Secondly, if you receive an RFE on the LCA code used, an experienced immigration attorney can assist in drafting a solid response. For example, one employer came to us after receiving an RFE on this issue. The job title was clinical data analyst. The LCA code used was that for medical scientist (as the beneficiary worked in the medical field, and the job duties were an accurate fit). USCIS said in the RFE that the correct LCA code should have been that of clinical data manager. We successfully responded by using expert opinion letters to show that a clinical data analyst is a type of medical scientist. We also successfully argued that the employer did not choose this code to avoid paying the higher prevailing wage; in this case, the wages for the medical scientist were higher than that of the clinical data manager (and further, the beneficiary was not a manager, making this category inappropriate).

Proactive planning and analysis is an essential first step in the preparation of a successful H-1B petition. The Sumner Immigration Law team has years of experience preparing H-1B petitions for multi-national corporations, start-up companies, and companies in-between. Contact us today to get started or to learn more about our streamlined services! 804-396-3412 or info@sumnerimmigration.com.