H-1B Petition

Specialty Occupation RFE Reponse

While many H-1B petitions are approved, it is becoming more and more evident that many are still ‘pending’ with the need for ‘Request of Evidence’ (RFE) being required by the USCIS. An RFE is issued by the USCIS when an application does not provide the necessary information or documentation to ‘tick all the boxes’ with regards to the eligibility of an applicant or position. It has come to light that many RFE’s that have been issued recently are linked to the issue of speciality occupations and specialised knowledge. 

Employers are able to submit H-1B petitions for specialised knowledge profession(al)s. If approved, the worker is entitled to start their employment in their ‘specialty occupation’ on the 1st of October that year. There are strictly limited numbers of H-1B’s available - only 65,000 per year, with 20,000 going to those workers with advanced degrees in the USA. It is not uncommon for the limit to be reached within a matter of weeks from the April 1st, so prior planning and early submission is absolutely vital.

If the USCIS is not satisfied by the information presented within a H-1B petition, i.e. they don’t feel the position is a ‘specialty occupation’, they will request for information through what is known as an RFE (Request for evidence). This RFE will ask the entity that submitted the application to provide evidence to show that the position meets one of the four following criteria:

1) A bachelor’s degree or its equivalent (or higher) is usually the minimum requirement for the position.

2) The requirement for a degree is standard for this position within the industry/the job is so complex that only someone with a Bachelor’s degree in a relevant field is able to perform the duties required.

3) The employer usually requires a degree (or its equivalent) for the position.

4) The duties of the job are so specialised/complex/unique that the knowledge required to perform said duties are typically correlated with the attainment of a Bachelor’s degree or its equivalent (or higher).

Ultimately, it is down to the entity who submitted the petition to prove that the position does indeed qualify as a ‘speciality occupation’. To aid petitioners, The Department of Labor issues its Occupational Outlook Handbook (often referred to as OOH), as this lays out what positions in what fields typically require a degree (and what type of degree is required). If the OOH does not explicitly state that a degree is normally required, the employer must then justify the need for a degree using other means. The evidence to prove this does vary, however it could include the employers previous advertisements for the same potion and/or from other companies stating that the minimum requirement for the job is a bachelor degree, thereby exemplifying that the industry standard qualification for that type of position is a degree. Employers may also utilise a more detailed job description to show that it can only be performed by those with a degree (in the relevant field). 

If the USCIS is unsure whether the employee’s degree is relevant to the specialty occupation then they may also issue an RFE. The employer must then provide information that the employee’s degree is relevant to the field, which may include submitting evidence that shows other companies from the same industry asking for similar degrees or providing an even more detailed job description - including the specific duties of the speciality occupation. 

To conclude, it is always best to submit the very best H-1B application you can and not rely on being able to ‘clean it up’ should a RFE arrive. It is also wise to view RFE’s as a positive rather than a negative, as it shows that the person working on your case is seeking evidence to approve the application. 

For further insight and assistance regarding RFE responses please visit: https://www.saygist.com/rfe-solutions-expert-opinion-letter/