How to prepare the RFE response for Specialty Occupation and Beneficiary’s Qualification?
Abstract: In recent years, many H-1B applicants have received the request for evidence notices. This article analyzes and summarizes the RFE submission process for Specialty Occupation and Beneficiary Qualification.
RFE 1: Specialty Occupation
Specialty Occupation is the most common type of RFEs this year. Applicants need to prove that the position they are applying for is a professional occupation that (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. According to 8 C.F.R. §214.2(h)(4)(iii)(A) of the Immigration Law, the applicant must provide relevant evidence to prove that the position meets at least one of the following four points:
1) A baccalaureate or higher degree or its 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, 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 the duties is usually associated with the attainment of a baccalaureate or higher degree.
The USCIS often refers to the Occupational Outlook Handbook (OOH) of the Department of Labor to determine whether a specific occupation requires a specific degree requirement. The occupations in our society are constantly shifting, and OOH's description of the position is often too broad and vague. USCIS often deliberately overlooks the limitations of OOH, and issues RFE notices based on their subjective interpretation of the OOH position. For example, let’s take a look at the few positions that are prone to receive RFE notice.
1. Market Research Analyst: For this position, the requirements from OOH are too broad, therefore this position has received RFE notice accordingly.
Market Research Analyst is a position that is prone to receive RFE notice and one of the positions could be most easily denied. USCIS issues the RFE notice given the following reasons: The position requires a minimum of bachelor's degree or above, but this position can accept bachelor degrees in many fields, which leads to failure to meet the requirements of H-1B.
The original RFE stated:
“Although reported that a bachelor’s degree is typically required, the OOH indicates that a wide range of educational backgrounds is suitable for the Market Research Analysts position. This information indicates that the position of Market Research Analysts is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no standard for how one prepares for a career as a Market Research Analysts, according to the Department of Labor and no requirement for a degree in a specific specialty. As a result, the proffered position cannot be considered to have met the criterion of Bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.”
2. Computer Occupations, All Other: OOH lacks the job description, therefore the USCIS issues RFE notice accordingly.
Computer Occupations, All Other is also a position prone to receive RFE notice. This is mainly because the job description from OOH is too limited just as if there’s no description, which leads to the absence of the information being unavailable to the USCIS.
“USCIS routinely references information provided in the Department of Labor's Occupational Outlook Handbook (OOH) which discusses the educational prerequisites for positions. However, the Computer Occupations, All Other listing in the OOH is a general category of occupations encompassing a variety of positions. As such, the OOH does not contain the specific training and educational requirements for the positions listed within this category. Therefore, USCIS is unable to determine if the position requires a minimum of a bachelor's degree in a specific specialty, or its equivalent.”
Upon the receipt of the above RFE, we only need to prove one of the points in (1)-(4). When preparing the documents, client should focus on points (2), (3), and (4).
For point (2): Provide job posting of similar companies or related fields, or certification letters issued by companies of similar size in related fields to prove that companies of similar size in the same industry also require a bachelor's degree in specific fields for the same position. Here, we must provide job posting with a similar size and similar industry. An important note, information, or evidence of the “similar size and similar industry” must be provided. At the same time, the minimum requirement for the job posting is a bachelor's degree. After obtaining the job postings, the applicant must solicit help from an attorney to screen out the most suitable postings. When screening out job postings, the focus should be placed on the quality, not quantity. For example, some applicants are rejected after providing 20 or more job postings, whereas some applicants only provided 5 job postings and got the cases approved.
For point (3): Provide the company's job posting & the academic qualifications and transcripts of all the past and present employees in the same position, thus proving that at least a bachelor's degree is required for this position. While the attainment of the above mentioned is good to have but not guaranteed because 1) For small companies, this position may be newly established, and there are no other colleagues in the same position in the past or present. 2) For large companies, there may be more than two hundred employees in this same position, therefore it is almost impossible to provide academic qualification for all of them. 3) Due to privacy concerns, some employees refused to provide their academic qualifications. 4) The company has been established for a long time, so it is difficult to provide the academic qualifications of all the past and present employees in the same position. This year, the USCIS has fully grasped the difficulty in obtaining the requested information, and Vermont Service Center has launched a more attainable template, that is, the employers only need to provide the academic qualifications or transcripts of all employees in the same position from the last two years. However, it will be very persuasive evidence if the employer can provide the academic qualification of all the employees. In addition to the academic qualification and transcript, at least one copy of the employee's (past or present) pay stubs needs to be provided. If the applicant or employer is unable to meet the requirement for point (3), there is no need to panic because only 1 out of 4 points needs to be proven. Many clients that we have worked with were still successful in having their cases approved without providing point (3).
For Point (4): Job complexity. Generally, you can provide work products, detailed job description, detailed introduction of the company's products and services, etc., to prove to the USCIS the complexity of the position, which leads to the fact that the person engaged in this profession should have a specific degree as required in related fields. An important note: If the company has confidentiality requirements for work products or samples, the sensitive information can thereby be redacted. Also, when preparing the detailed job description, please break down the job duties, and correspond the duties to the educational knowledge in detail.
An expert letter can also be provided to prove the complexity of the position from an expert's point of view. There are two ways of obtaining the Expert Letter: 1) Agencies, they will help you find the corresponding experts. Such organizations generally follow a process protocol. Therefore after receiving the letter, you must have your attorney review it and have the experts revise the letter accordingly to your uniqueness. At the same time, such agencies are usually occupied during the peak season of H-1B every year, and many of the calls and emails will go unanswered. So instead of waiting passively, you need to be proactive in the follow-up process. Also, if the attorney is contacting the experts on the applicant’s behalf, the applicant should request a scanned copy of the Expert Letter and check for any errors. 2) Ask professors that know of your academic performance to pen the Expert Letters. Most of the professors are not familiar with the USCIS requirement, therefore please clarify the requirements with the professors before the writing. Meanwhile, some clients hold a stereotype that things are better if you pay for them. However, this is not necessarily the case. Many of our clients provided Expert Letters written by their professors, and their cases have been approved. In addition to asking the professors to write the letter, the applicant should also draft a brief section introducing the professor’s qualifications. For example, what makes him/her a qualified expert to prove the substantiality of the letter. For Expert Letter, it is about quality and not quantity. One or two letters should suffice. On the other hand, you can further elaborate the uniqueness of the position and how it differs from other similar positions in other companies to prove the position can only be fulfilled by a person with at least a bachelor's degree in a specific field.
Real Case:
The applicant is a small equipment company with few people in the marketing department. The applied position is “Market Research Analyst”. Anyone familiar with the H-1B application process knows this is a difficult position to be approved and prone to denial. The client reached out to us during the RFE phase. We discussed with the client on the characteristics of the company and the requirements for the applied position. We instructed the client to break down the job duties in a tabular manner, and further elaborated in details the knowledge required to perform the mentioned duties. At the same time, we assisted the client in preparing the organizational chart, reviewing similar job postings from closely related fields or companies provided by the clients, and submitting these documents and working samples to the USCIS. We also assisted the client in preparing and revising 2 Expert Letters. The client opted for premium processing and the case was approved within one week
RFE 2: Beneficiary Qualification
In today's job market, it is not easy to find a job, and landing a specialty position is even more difficult. The USCIS would often issue RFE requesting proof that the H-1B employee’s education degree is relevant to the position applied.
The issue that arises on the Beneficiary Qualification is usually caused by the broadness of the academic curriculum. The USCIS would often conclude the MBA degree is too broad and vague, which raises suspicion on the part of the Beneficiary Qualification. Fortunately, it is not entirely hopeless for the MBA degree. In our experience, we have helped numerous applicants with an MBA degree to analyze their curriculum and have further proved that the knowledge obtained from this degree is not at all broad and vague.
At the same time, starting in 2017, many of our clients with the software engineer degree have received the RFE notices for Beneficiary Qualification. For example, applicants with an Electronic Engineering degree are not competent in performing the works of a software engineer. Given this issue, the applicant needs to provide information evidencing the corresponding relationship between the educational degree and job duty. Such as the company’s hiring standard in the past and the present, the completion of the curriculum is required to successfully carry out the job duties in the position, and 1-2 Expert Letters proving the corresponding relationship between the degree and the job duties.
Real Case:
The applicant is an education company. The beneficiary studied the physics doctorate. The position is an Instructional Coordinator. Under the pessimistic employment environment, this is the only company the beneficiary found willing to sponsor the work visa. The USCIS issued an RFE arguing that the beneficiary's specialty does not meet the professional requirements of the position, and the Instructional Coordinator position can only be fulfilled by graduates majoring in education, and the beneficiaries with a Physics degree should work in the laboratory.
In our response, we analyzed in detail the various professional courses, previous work experience, professional training completed by the H-1B employee combined with the Expert Letters and explained to the USCIS that knowledge stays the same, thus proving the degree of H-1B employee is qualified for this job. The case was approved within 2 months without applying for premium processing.
Given the limit of article space, we are targeting the area of Specialty Occupation and Beneficiary Qualification for further analysis and conclusion in hope of providing clarity for everyone. In the coming days, we will continue to publish a series of RFE articles on the topic of “Maintenance of Status”, etc. Please subscribe.
Lastly, do not panic just because you have received the RFE notice. However, you must be confident in the legal experience and knowledge of your attorney. Please carefully prepare the documents advised by the attorney and submit to the USCIS. Good luck with your application!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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