These are tough times for US immigration, and the challenges are not just limited to the border crisis. The current administration is building an invisible wall, brick by brick, to prevent even highly educated, skilled professionals from joining the US workforce, and remaining a vital part of our economy. So it would seem the short answer to this question would be “don’t file an H-1B.” But that is not the answer. Half the battle is anticipating what you may be facing. Read on to see what’s “trending” in H-1B RFEs!
To be approved, an H-1B petition must meet the definition of specialty occupation, which means a professional position that requires a minimum of a bachelor’s degree in a specific field of study. In making the specialty occupation analysis, USCIS will often look to the Occupational Outlook Handbook (OOH), published by the Department of Labor and available online.
To understand what occupation USCIS will look up in the OHH, let’s take a look at the Labor Condition Application (LCA). The LCA is filed online and certified by the Department of Labor before an H-1B petition is filed. The certified and signed LCA is included in the H-1B filing. The general purpose of the LCA is for the employer to attest to the terms and conditions of employment (how much they will pay the worker, the worksite address, etc). For purposes of the specialized knowledge analysis, the LCA has a few key components:
- The job title – this is the job title that the employer uses for the position. It can be any job title that the employer sees fit, and can typed into the job title field.
- SOC code – This is the Standard Occupational Code, and it’s the system that the DOL uses to determine wage amounts for any given occupation. Keep in mind that this is a drop-down menu of SOC codes. There is not an SOC code for every occupational position out there, so we must select the SOC code that most closely matches the proffered position. Also keep in mind that in the DOL’s wage system, sometimes different occupations are lumped together into one umbrella category for wage purposes. For example, the job title of Software Quality Assurance Engineers and Testers falls into the umbrella SOC code of computer occupations, all others, for wage purposes. So that is the SOC code that is listed on the LCA, even though the employer’s job title may be Quality Assurance Analyst, for example.
- Wage level – Each occupational category in the SOC system has four different wage levels. We had seen wage level 1 RFEs before last year, but they were rampant for last year’s H-1B cap cases. That is, USCIS asserted that since wage level 1 was selected, the position must be an entry-level position, and therefore it could not be a specialty occupation position. That is of course an over-simplified assumption from USCIS, and we have been able to successfully address this concern.
Going back to USCIS’ specialty occupation analysis, the USCIS officer will usually look at the SOC code, not the employer’s job title, and use that SOC code to look up the position in the OOH.
- If the SOC code is one that has been lumped into an umbrella “all other” category such as the quality assurance analyst listed above, USCIS will issue an RFE on specialty occupation, because there is not an entry for the “occupation” of computer occupations, all others (for example).
- If the SOC code is listed in the OOH, then USCIS will carefully examine the OOH entry.
- If the OOH entry says that a bachelor’s degree is often required, but that employers will sometimes accept an associate’s degree (or less), USCIS will likely issue a specialty occupation RFE, because the entry does not specifically say that only a bachelor’s degree (or higher) is required.
- If the OOH entry says that a bachelor’s degree is required but lists multiple acceptable fields of study, USCIS will also likely issue an RFE, stating that a bachelor’s degree in a specific field of study is not required.
Another great way to trigger a specialty occupation RFE is if the H-1B beneficiary has an unrelated degree, meaning a degree not related to the proffered position. Historically USCIS has accepted degrees in electrical engineering, for example, as being related to IT positions such as software engineers. We are now seeing that USCIS is questioning whether the degree is related, and also issuing a specialty occupation RFE as well, saying that since the beneficiary has an engineering degree, it seems that diverse fields of study are acceptable for the position. This is true for other occupations as well.
How Does This Affect You?
There are several things that H-1B employers, employees, and their attorneys can do to proactively address these issues, or at least be prepared for the RFE:
- Think carefully about the SOC code selected on the LCA. The SOC code must be accurate and appropriate for the position but it’s a good idea to proactively look at the relevant OOH entry, and think about how that will affect the petition.
- Likewise, make sure to select the appropriate wage level. Some positions are in fact entry-level, level 1 wage positions, so it may be entirely appropriate to select the level 1 wage. However, if the beneficiary has previous experience, advanced degrees, etc, and/or if the position requires experience, then a higher wage level may be more appropriate. However, just selecting a higher wage level will not make a petition immune from a specialty occupation RFE. You must consider all of the elements together.
- Make sure the beneficiary does not have an unrelated degree! If the degree is not directly related to the proffered position, it may be possible to proactively obtain an education evaluation based on education and experience, to obtain the desired equivalency.
- If you do receive a specialty occupation RFE, there are multiple ways to successfully address the RFE. An immigration attorney with experience and knowledge of the H-1B classification and current trends can help make sure that you submit the strongest response possible. However, perhaps even more importantly, make sure to work with an experienced immigration attorney from the start, to make sure you are setting up the petition for the strongest chance of approval possible. No one can make a guarantee, but knowledge the current trends and proactive planning can go a long way!
Do you need assistance with a family-based or employment-based immigration matter? Please contact our office today to see how we may be able to assist you! We are immigration lawyers located in Richmond, VA but we serve clients throughout the US and around the world. Please call us at 804-396-3412 or email us at firstname.lastname@example.org. We look forward to hearing from you!