Now that the dust has settled from the mad dash to March 31, the receipt notices are rolling in for the lucky lottery winners whose H-1B petitions have been selected for the FY 2015 cap. Since the lottery was held on April 10, U.S. Citizenship and Immigration Services (“USCIS”) has begun notifying the winners and will soon begin returning petitions not selected for the cap to the losers. With USCIS receiving nearly twice as many petitions as there are cap numbers available, the focus thus far this cap season has been on the insufficiency of visas to meet the demands of U.S. companies. In the coming weeks and months, however, that special feeling of getting a receipt notice will begin to wear off and the focus will shift to USCIS’s infamous “specialty occupation” requests for evidence (“RFE”), in which USCIS questions whether a bachelor’s degree (or equivalent) in a specific specialty is the minimum educational requirement for performing the job duties described in the H-1B petition.
Overcoming these RFEs requires evidence demonstrating satisfaction of one of four regulatory standards:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- 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.
In this regard, the success of many H-1B petitions often feels at the mercy of the U.S. Department of Labor’s Bureau of Labor Statistics, which publishes the Occupational Outlook Handbook (“OOH”) containing information on 580 occupations in 334 different profiles. If the OOH does not unequivocally convey that employers require at least a bachelor’s degree in a specific specialty for entry into the position, USCIS will find that the position does not satisfy the first standard listed above. Given that the OOH offers such a limited number of occupational profiles in light of the vast and ever-evolving professions in the labor market in the United States, USCIS’s blind adherence to and reliance upon the information provided by the OOH is highly questionable.
An example of USCIS’s application of this approach to H-1B adjudication can be found in the Order Granting Summary Judgment in favor of USCIS issued last week by the United States District Court for the Northern District of California in the case of Caremax Inc. v. Holder. In this order, the Court stated:
USCIS referred to the Department of Labor’s [OOH] profile of the public relations specialist position to determine if a specific bachelor’s degree is a minimum requirement for entry into the profession. See A.R. at 18-20. The OOH profile states that public relations specialists “typically need a bachelor’s degree. Employers usually want candidates who have studied public relations, journalism, communications, English, or business.” Id. at 176. While a bachelor’s degree appears to be a minimum requirement for entry into the profession, the OOH makes clear that employers are not particularly concerned with what type of bachelor’s an applicant has achieved. As USCIS noted, the OOH does not support a claim that “public relations specialist” is a specialty occupation. Id. at 20 (“There is no apparent standard for how one prepares for a career as a Public Relations Specialist and no requirement for a degree in a specific specialty.”). (Emphasis added).
Therefore, even when the OOH profile indicates that employers generally prefer or even require a bachelor’s degree in one or more specific, closely related majors, USCIS may still conclude that a bachelor’s in a specific specialty is not normally the minimum requirement for entry into the H-1B position. Of course, this finding is not fatal as there are three other standards under which the position may qualify as a specialty occupation. Additionally, there may be an OOH profile that is more closely aligned with the duties of the H-1B position than that analyzed by USCIS in the RFE. If that profile contains language satisfying the specialty occupation standard, the RFE response must challenge USCIS’s characterization of the position and clearly demonstrate its similarity to the more advantageous and accurate OOH profile; as with any other kind of RFE, USCIS should be given no quarter unless its specialty occupation analysis is absolutely impeccable.
The specialty occupation issue is just one element of the war USCIS is waging against H-1B petitions, so the cap case casualties may take many different forms. If you receive an RFE questioning whether your H-1B petition is for a specialty occupation, or raising any other issue of eligibility, please contact Wolfsdorf Rosenthal LLP for a consultation.