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Is USCIS Issuing a Higher Number of Requests for Additional Evidence or RFEs in Connection with Pending H-1B Cap Petitions This Year?


There is a much higher percentage of RFEs being issued this year, and this ties in with a couple of things. Certainly, over the last several years, USCIS has been stricter in its adjudication of H-1B matters, especially first time H-1B requests. The other aspect is that the President has pushed a “Buy American, Hire American” policy based on a recently issued executive order. This policy has not been friendly to foreign workers coming from abroad. This new policy misses the fact that important talent from other countries around the globe comes to the U.S. to benefit companies here in the U.S. Providing lawful work visa status to foreign workers allows U.S. employers to hire US workers based on their ability to keep important projects and key technologies here in the States, rather than outsourcing them abroad.

A second aspect concerns new legal arguments that USCIS has been pursuing to advocate for how they think the H-1B program should be run. These interpretations are new and a departure from the past. The substantive law has not changed in about 27 years, but USCIS is trying to push that law in new directions in order to make the H-1B category more restrictive.

What Is an H-1B Specialty Occupation?

An H-1B specialty occupation is a job that requires a body of highly specialized knowledge in a specific field of human endeavor. The foreign worker’s possession of a bachelor’s degree is not sufficient in and of itself. An H-1B petition cannot be approved unless the job itself requires a specific body of knowledge, in contrast to just general studies.

Is a Specific Degree Major Required?

The focus is on field or body of knowledge. A number of different majors in different academic departments could overlap in covering that field. Examples may include the development of new materials that involve principles of electrical engineering, physics, and material science. Those three different departments may overlap into one specific field of knowledge in a particular area. Another example may be a human resource related role that involves elements of business, communications, and psychology. Again, different academic departments may overlap the same or a similar field of knowledge. Marketing roles involving the application of new media technology could involve marketing, as well as perhaps computer science or web development related studies.

What Is a Degree Equivalency?

The current law allows a person to qualify for H-1B status based on any combination of education, training and/or experience. An equivalency allows a person to demonstrate their qualification for H-1B status by documenting how their education, experience, or training, is equivalent to the knowledge and skills that a person with a specific degree from a US school would possess.

What Ways Can Equivalency Be Documented?

The easiest way, of course, is if the person has a degree from a US school. If they have a degree from a foreign school, that can be evaluated by a credential evaluator to confirm its equivalence to a US degree. Additionally, letters can be used to document training or work experience. Some training programs will result in the issuance of a certificate, which can also be used to document equivalency. The equivalency regulation provides a number of different paths through which an outside expert can confirm equivalency.

What Jobs Can Qualify For an H-1B Specialty Occupation?

There are four different ways for a job to qualify for H-1B eligibility. The first way is through confirmation by a government resource, the common one being the Occupation Outlook Handbook (OOH). The second way is to show that the degree requirement is common to the industry because other similarly situating employers also require a degree. The third way would be to show that the employer itself normally requires a degree for the job. The last way would be to document how this may be a special job for which the nature of the given position is so specialized and complex that it requires even an entry-level person to have a Bachelor’s degree.

For more information on RFEs For Pending H-1B Cap Petition Matters, a consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 234-8875 today.

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