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  1. What Standards Do H-1B Examiners Use to Decide if a Job is a Specialty Occupation? What Happens When They Make Up Their Own Rules? Roger Algase

    Another year, and another H-1B filing preparation season is now well under way, with an estimated new 200,000 or so cap-subject petitions now in preparation on the way to be sent out at the end of this month for arrival during the first week in April.

    During this season, there has been a lot of important and useful advice on this site by a number of experts about various aspects of the H-1B requirements and procedures, such as LCA's, prevailing wage levels, off-site job placement, academic equivalence and other related matters, and it is not my intention to repeat any of this information here.

    Instead, i will deal with one of the most fundamental and critically important aspects of H-1B of all; one which, at least in my own more than 30-year experience of filing H-1B petitions, has been one of most frequent sources of H-1B RFE's and, on a few occasions during this period, even denials. I refer to the requirement for showing that the offered H-1B job qualifies as a specialty occupation.

    As every H-1B practitioner knows, this requirement has little or nothing to do with the H-1B candidate's ("beneficiary's") own educational level: he or she could be a Ph.D holder in the field of employment involved, but that doesn't normally matter. What matters is whether the job offered requires at least a bachelor degree (or equivalent) in or related to the position in question.

    If the petitioner is unable to show that the job meets any one of the four standards for a specialty occupation listed in the H-1B regulations, then no matter how solid or outstanding the beneficiary's own educational background (and/or equivalent work experience) in the field involved may be, the petition will almost certainly be denied.

    So what are the four standards for a specialty occupation, and how should they be evaluated in preparing a petition? Are they all equally important, so that the sponsoring employer and pick and choose whichever one seems to be the easiest to meet? Also, what kind of evidence are H-1B examiners most likely to find persuasive in deciding whether one or another of the four standards has been met?

    And which kinds of evidence are H-1B examiners most often likely to disregard, no matter how carefully the petitioner (employer) puts the evidence together? To answer these questions, let's begin by reviewing some basics which every H-1B practitioner should know in theory, but which can be widely misunderstood in practice.

    First, the H-1B regulations list four criteria for determining whether a given offered position is a "specialty occupation" and, as mentioned above, it is only necessary to show that any one of the four standards has been met.

    These can be summarized as follows:

    1) The normal requirement for entry level employment in the position is a bachelor degree in or related to a particular specialty, or the equivalent;

    2) Other similarly situated employers in the same type of business or industry require a specialty bachelor degree in the same or related field, or the equivalent, for the same or a similar position;

    3) The petitioning employer has a history of normally requiring a bachelor degree (or equivalent) in or related to the offered position for previous employees working in the same or similar position; or

    4) The position is at a level of complexity and specialization normally associated with attainment of a bachelor degree (or equivalent) in or related to that position.

    In theory, each of these four criteria is supposed to be of equal value, so that it makes no difference which one the job meets, as long as it meets one of them. But as George Orwell wrote some 70 years ago in his famous novel Animal Farm, "all animals are equal, but some are more equal than others".

    The same could just as well be said about meeting the requirements for an H-1B specialty occupation. So, to start with, we can (in most cases - there are always exceptions) eliminate the second and third criteria listed above for all practical purposes. They are, in most cases, definitely "less equal" than the other regulations.

    Why is this? Because, as far as relying on hiring requirements by other companies in the same industry are concerned, typical H-1B immigration examiners will often find some difference or other between any given H-1B petitioner and other companies in the same industry, so that their hiring practices will not be relevant.

    Does the other employer in the same industry have half a dozen more, or fewer, employees than the H-1B petitioner? If so, they are not equivalent in size. Does the H-1B employer make cookies while the company whose hiring practices are being used as a comparison makes crackers? If so, they are not in the same industry, according to many typical H-1B examiners. Etcetera.

    Many H-1B employers also try to show job ads by other companies for similar positions as evidence that a specialty bachelor degree is a normal industry requirement for the offered job. According to numerous published AAO (USCIS appeals office) decisions, this is rarely successful. In the real world, many employer job ads may require a bachelor degree for a given position without saying what the required major or field of study is, because this is understood from the context of the offered position.

    But the inevitable USCIS response to evidence of such ads by other employers in the same industry is that these ads do not show that the offered position is a specialty occupation, because they do not specify which kind of studies the bachelor degree in the job ad should include.

    In the same way, using evidence that the H-1B employer has always hired people with related bachelor degrees to perform the same or similar occupation is, according to many published H-1B decisions, not usually successful by itself in convincing H-1B examiners that the offered job is a specialty occupation, unless the employer can present evidence of a substantial number of previous employees, with degrees in almost identical majors and very similar coursework, who were working in the same position.

    Often, no matter how much such evidence an H-1B petitioner provides of previous hiring practices, the USCIS examiner's response is likely to be that the evidence was insufficient to show that the offered position is a specialty occupation.

    This leaves only two ways of demonstrating that one of the above four criteria for determining whether the H-1B job is a specialty occupation has been met. One of them involves meeting the fourth standard described above, namely that the duties of the H-1B position are so specialized and complex that they require a bachelor degree (or higher) in or related to the specialty in order to perform them.

    In order to show that this standard has been met, many H-1B petitioners submit position evaluation letters from a qualified academic or other expert showing in detail the exact skills needed to perform the duties of the offered position, and demonstrating that these skills can only be acquired by completing bachelor degree level studies (or the equivalent) in that field or a related one.

    While these academic letters, which I often use in my own H-1B practice, should be one of the most reliable ways of all to show that the position in question is a specialty occupation, some H-1B immigration examiners, particularly at the California Service Center (CSC) which has long been a leader in finding "creative" ways to discount evidence of all types that H-1B and many other types of skilled worker petitions deserve to be approved, have their own strategies for disregarding these expert opinion letters.

    For example, one of the standard template RFE's which the CSC frequently uses asks for evidence that the offered H-1B job duties are more complex and specialized than the normal industry requirements for that job. This requirement is not found anywhere in the above four standards for a specialty occupation, and it conflicts with the clear purpose of these standards, which are all obviously aimed at determining what the normal requirements are for any given H-1B position.

    But as will be shown in my next post on this topic, this is not the only example of H-1B examiners imposing additional requirements not found anywhere in the regulations in order to reject clear evidence that the job in question qualifies as a specialty occupation.

    In my forthcoming continuation of this topic, I will discuss the only remaining standard for determining a specialty occupation listed above, namely whether a bachelor degree in or related to the occupation in question is the normal requirement for that position as a general matter.

    In this regards, H-1B examiners (and the AAO) give overwhelming weight to a publication of the US Department of Labor known as the Occupational Outlook Handbook (OOH). This publication, which is nether a technical or a legal text, but is only meant to be a general guide for students and others who are choosing a career or may be thinking of changing careers.

    As I will show in my next installment of this discussion, this handbook is often no clearer than the Sybilline Oracles which were popular in imperial Rome, or the Delphic Oracle of ancient Greece, both of which were famous throughout the western classical world because no one could ever be sure what they meant.

    Perhaps for that reason, USCIS H-1B examiners rely on the OOH so heavily that, in practice it is more important for H-1B decision-making than the other three standards for a specialty occupation combined.

    Definitely, the OOH is the "most equal" of all of the four specialty occupation standards in the view of most H-1B examiners. No H-1B practitioner can afford to ignore this reality.

    To be continued in my upcoming next installment on this topic.
    ------------------------------
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, Roger has been helping mainly skilled and professional immigrants, from diverse parts of the world, obtain H-1B and other work visas, as well as green cards though employment or family relationships.

    Roger's email address is algaselex@gmail.com

    Updated 03-09-2018 at 11:57 AM by ImmigrationLawBlogs

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