A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, August 6, 2019

H-1B "Specialty Occupation" Denials - How to Avoid them

Many H-1B employers and workers alike have experienced denials of their applications based on failure to meet the regulatory requirement of "specialty occupation."   This requirement is one of many legal requirements that employers and foreign workers must meet in order to obtain H-1B working status.

Congress created the H-1B visa program to recruit technical workers that America needs to fill various professional occupations such as architects, accountant, computer engineers, etc.  Qualified foreign workers may have up to 6 years of nonimmigrant status to work in the U.S. To successfully obtain H-1B visa status, applicants must prove that the underlying position meets the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a            minimum for entry into the occupation in the United States.

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Federal regulation 8 C.F.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation: 

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;
2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may 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 specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

These definitions and requirements can be confusing and also circular in nature. In recent years, USCIS has severely tightened the interpretation of these requirements, resulting in higher number of denials.  The following are some common reasons for denials and tips for avoiding them.

Inconsistencies:  Inconsistent information is one of the leading reasons for denying any immigration petition.  Inconsistent facts such as job descriptions destroy the credibility of the parties and make it more likely for USCIS to deny a case.  Oftentimes the parties did not intend to put down inconsistent or incorrect information; they simply did not have the correct information or failed to make an effort to collect the right information.  Sometimes it is better not to put down any information if you are not sure that it is correct.  

Deficient Job Duties: A related problem is that employers sometimes put down disorganized listings of job duties which do not support a finding of specialty occupation.  Rather than putting down 20 or 30 isolated technical duty, petitioners should sit down with the employees and project managers to organize and filter the job duties to something coherent and understandable.  Sometimes employers simply copy the job duties from DOL's literature, hoping that they would meet the legal requirements.  In fact, use of generic requirements draw suspicion from the examiners.  The legal requirement is that the employer should put down the specific job duties of a particular H-1B position.

Not Matching LCA:  Certification of the Labor Condition Application (LCA) by the DOL is a prerequisite for the H-1B petition. The LCA contains relevant information including the job title, job location and salary information.  Employers sometimes put down job information in the LCA that does not match the actual position in the H-1B petition.  For example, the position is a software testing or Q.A. position but the employer classifies it as a software developer position, again thinking that it would increase the chances for approval.  However USCIS would actually deny such a petition on the basis that the LCA does not support the H-1B petition.  

Speculative Employment:  This issue is not directly related to the job duties or nature.  Rather, USCIS argues that if the employer cannot prove that there is sufficient work for the employee to do, then there is no proof that specialty occupation exists to support the H-1B petition.  This is a common problem for IT consulting firms.  They have a client who needs the technical services of one of their employees. However, this client refuses to provide any support letter or agreement to prove the existence of such an engagement.  Consequently, USCIS denies the H-1B petition based on "speculative employment."    Another scenario is that the IT firm may have a contract to place an employee to work at a client site for only six months, which is subject to extension until project completion.  In this situation, USCIS may deny the case or approve it only for 6 months. To avoid such a result, employers should provide secondary evidence to prove the existence and duration of the project engagement. 

In sum, H-1B applicants must pay more attention to their applications in today's tough adjudication environment.  With careful planning, sufficient evidence and proper legal counsel, it is still possible to get your H-1B petition approved!

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