H-1B specialty occupations for small business – expect a Request for Evidence (RFE)
In its arsenal of tools aimed at keeping out foreign workers, USCIS is now pushing back on H-1B petitions filed for small business claiming that the position is not for a specialty occupation which requires a specialized program of academic study because a Bachelor’s Degree is not the minimal entry requirement for such a position. This is particularly the case for various types of engineers which don’t require one specific course of study.
Note the following guidance from USCIS taken from the most recent USCIS/American Immigration Lawyers Association liaison meeting regarding “Specialty Occupations” in the Context of Start-Up Businesses and Small Businesses:
USCIS RESPONSE: The types of specialty occupations that may be appropriate for a small business will depend on the facts and circumstances of each case and the applicable statutory and regulatory requirements for H-1B petition approval. The statute and regulations require that the beneficiary will be coming to the United States to perform services in a specialty occupation. In determining whether or not the beneficiary’s intended employment will be in a specialty occupation, as required for eligibility and petition approval, USCIS reviews the terms and conditions of the intended employment as stated on the petition and in the supporting evidence, including the job duties for the role. Job titles are not controlling in making this determination. The evidence in the record for each case is reviewed in its entirety to determine if the beneficiary will be employed in a specialty occupation.
In responding to these Requests for Evidence, we advise our clients to make sure that they focus on an hour by hour breakdown of the job duties of the position, and where appropriate, link up the specific job duties to college courses taken in the program of study. It is also helpful to remind USCIS that the job title is “not controlling” and that the standard on RFEs of this type is “preponderance of the evidence.” You can read more about H-1B issues here.