Updated: Oct 23, 2020
By Alexandra Beers Van Derlyke - Project Director, ProfVal LLC
& Zachary Johnson, Ph.D. - Founder, ProfVal LLC
Executive Summary: A Specialty Occupation RFE is the most common type of RFE issued by the USCIS for an H-1B. This research paper explains what a specialty occupation RFE is and how to reduce your chances of getting one and how to respond if you do get one.Includes insights from experienced immigration attorneys:Sandra Feist (Grell Feist, PLC), Ricky Palladino (Solow, Isbell & Palladino, LLC), David Raft (Global Immigration Partners), and Samuel Chow (Fragomen)
The #1 reason USCIS agents issue an H-1B RFE is because a petitioner “did not establish that the position qualifies as a specialty occupation”. To understand what this means, let’s first dive into what a specialty occupation is. A specialty occupation position requires:
"(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.” Section 214(i)(1) of the INA, 8 USC 1184(i)(1)
Put simply, this means two things: first, it means that you must demonstrate that the position requires no less than the equivalent of a U.S. bachelor’s degree in a field related to the position; and second, it means that the beneficiary (the candidate) must have acquired no less than the equivalent a U.S. bachelor’s degree in an area related to the position requirements. In this paper, we discuss position requirements. In a future paper on ProfVal’s H-1B RFE blog, we will discuss beneficiary qualifications.
Next, we discuss some general best practices and then specifically address position and beneficiary qualifications.
Your initial application
As a supplement to your I-129 form and other documents, a manager support letter can be used to assert your company’s perspective that the position meets H-1B requirements, particularly specialty occupation requirements. A letter describes the company, position and associated dutes, and the candidate’s allocation of time. An example support letter will be provided in a future post within ProfVal’s H-1B series.
Be sure that you are “critically evaluating the offered position at the outset and asking the foundational questions: is a baccalaureate level degree or higher normally required for the position? What is the industry standard for similar roles? What are the employer's normal practices for this type of role? Is the position so complex and specialized that a baccalaureate level degree or higher is required?” Samuel Chow (Fragomen)
As a form of evidence for specialty occupation status, many attorneys will advise including an Expert Opinion Letter in your initial application. An Expert Opinion Letter from ProfVal is a letter written by a relevant expert (typically a professor) who is able to opine as to how or why a position meets specialty occupation requirements.
You might be surprised to learn that “sometimes there is a strategy to not show all of your cards initially, and to instead hold back some information that can be convincingly presented when we get an RFE.” (David Raft of Global Immigration Partners). The rationale? An RFE gives you another opportunity to make your case while a denial is more challenging.
What cues to agents look to in issuing a specialty occupation RFE?
Harkening back to the April 2017 Presidential Executive Order and subsequent USCIS memorandums, RFEs and denials have been on the rise. Agents have full discretion in issuing an RFE and have issued them for more and more reasons -- and even for positions, petitioners, and positions that had been approved previously.
A common way that the USCIS will question your application is by, “referencing the OOH [Occupational Outlook Handbook] as the primary source for whether a position is a specialty occupation, even though the Department of Labor states that this is not the purpose of the site.” (David Raft (Global Immigration Partners). An agent may question your role if they believe that typical OOH requirements do not align to the duties of the position, if the typical entry-level educational requirements are not a bachelor’s degree or above, or for any reason determined in the agent’s sole discretion.
An RFE is especially likely for positions with atypical titles or that do not fit perfectly into an existing OOH category. As per Sandra Feist of Grell Feist, PLC, “they have a system where an RFE is automatically generated whenever the occupational classification is in a sub-category” like music therapist (a subcategory of "recreational therapist") or energy engineer (a subcategory of "engineers, all other" ). Whenever one of these subcategories come up, she explained, a petitioner will get an RFE on whether the position requires a related Bachelor’s degree. “It’s as random as if whenever you sponsor a job that begins with “A”, you get an RFE about whether the job requires a Bachelor’s degree. It shows that their goal is not to safeguard the H-1B category, but to create an RFE.”
In addition to the general position itself, over the last few years, “agents have not only been questioning whether the position is a specialty occupation position, but also whether all of the duties each week and each day align to specialty occupation responsibilities. We plan for and anticipate this response” (Ricky Palladino of Solow, Isbell & Palladino, LLC). Mr. Palladino notes that this degree of questioning can be particularly challenging for small companies or startups wherein an employee may adopt a variety of roles within the organization.
You received a specialty occupation RFE. What now?
First, take a breath. Remember what we noted earlier -- an RFE provides you with an opportunity to re-argue your case with new evidence. At this point, “[w]e will provide ancillary documentation that would corroborate that the degree that we’re looking at is required for the role” (David Raft of Global Immigration Partners).
Sometimes, your arguments may be based on legal doctrine. Sometimes, you may need to provide some of the documentation that we described earlier. Other times, “you’ll want an expert opinion letter to support something of the following: i) The minimum entry requirement is a bachelor’s degree or higher, or its equivalent. The degree must be common in the industry or required to perform the job, ii) The employer normally requires at least this degree or its equivalent for the job, iii) The nature of the tasks is so specialized that required knowledge to carry them out is usually associated with the attainment of a minimum of bachelor’s degree.”
How can ProfVal help?
ProfVal is the purpose-driven, professor-founded, and ethically-grounded Expert Opinion Letter leader. ProfVal works with dozens of experts, most of whom are professors at world-class U.S. colleges and Universities, who are qualified to write Expert Opinion Letters that explain why a bachelor’s degree is the minimum entry requirement for a position such as yours. Letters from the experts who are part of the ProfVal community have been used to support visa applications for entrepreneurs, H-1B candidates, and can be used to support your visa application too.
Nothing in this article or any other article provided by ProfVal can be construed as legal advice. If a lawyer is quoted within the article, they are providing general comments about the immigration process; their comments cannot be taken as legal advice from them or the firm that they represent. Further, a quote by a lawyer does not indicate their agreement or disagreement with any content within this article.
© ProfVal, LLC 2020
ProfVal, LLC (profval.com) is a purpose-driven, professor-founded, and ethically-grounded provider of Expert Opinion Letters that can be used to support employment-based visas (H-1B, L1, EB, O). ProfVal is dedicated to helping clients through services built based on an architecture of research. ProfVal is dedicated to helping our communities through our giving site, profval.org.
Zachary Johnson, Ph.D. is the founder of ProfVal, LLC. He has over a decade of experience as a professor, academic researcher, academic program developer, and leader in academics. Through consulting engagements through ProfVal and otherwise, he has worked with members of the Fortune 500, startups, and nonprofits.