Expert Opinion Letter for H1B Specialty Occupation

Our office has been in close contact with USCIS, other practitioners and affected clients and we have been working on a strategy to handle this kind of RFE responses. The good news is that our focus on this type of cases and multiple years of handling H-1Bs (and their RFEs) has allowed us to understand what kind of documents, facts, and arguments are likely to work to prove specialty occupation

USCIS allows an employer to point to its hiring practices and standards to make the case that in the past (and currently) when they hire for the same or very similar position the h1b beneficiary requires a bachelor’s degree or higher in a specific field.  An adjudicator would expect to see educational documents (diploma, transcript, or an evaluation for foreign degree), evidence that the beneficiary work experience is similar to the job description, We have found that when presented and organized well, this can be a very strong and successful argument for proving specialty occupation. The Wage Level I salary issue was first raised during last year (summer 2017) H-1B cap season.  At that time USCIS questioned, as a separate major point, whether the position described in the position is suitable for a Wage Level I salary in the LCA which is essential for entry-level positions. The Wage Level I issue has since not disappeared completely but is now most often included into the specialty occupation RFE issue where USCIS questions whether the entry-level position is consistent with a position requiring a bachelor’s degree or higher.

The fact that the specialty occupation RFE has been so widespread and has targeted all kinds of employers and positions is an indication that this issue will likely linger for months or even years.   The H-1B adjudication process includes RFE response time, followed by possible appeal or motions to reopen or reconsider of a denied petition, followed by possible additional litigation.   In the meantime, we caution employers who are affected by the specialty occupation RFE wave (or who are preparing new petitions) to carefully consider and prepare their government submissions.

Our office will continue monitoring related developments and provide updates.   Please do not hesitate to contact utevaluators.org if we can be of any help in preparing or assisting with H-1B Expert Opinion Letter on specialty occupation RFEs. 

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