Detailed Job Descriptions are Vital to Proving H-1B Specialty Occupation

[TampaChinnodu]

Detailed Job Descriptions are Vital to Proving H-1B Specialty Occupation

By ImmigrationGirl January 12, 2018 H-1B 19 Comments

 

I think we can all agree that it has become more difficult to obtain approval of H-1B petitions under the Trump administration. Without any change in law or regulation, the number of Requests for Evidence (RFEs), second RFEs, Notices of Intent to Deny (NOIDs) and Denials has skyrocketed. One of the most common issues raised in RFEs and reasons for denial in recent months is the failure to establish that the position qualifies as a specialty occupation.

 

Specialty occupation is the basis for eligibility for all H-1B visas. Specialty Occupation was defined by congress as an occupation that 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.

 

Department of Homeland Security regulations provide 4 criteria proving a position qualifies as a specialty occupation-

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) 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;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

 

Neither the law passed by congress or the regulation published by DHS have changed. So why is it harder to get an approval all of a sudden?

 

The Trump administration has made clear that, even though the law does not require this, H-1B visas should go to the highest paid or highest skilled individuals. With this backdrop, USCIS adjudicators are setting a higher standard to meet the specialty occupation definition.

Many petitions are still being approved, and many are still being approved without a Request for Evidence being issued.

 

What can be done to maximize the chance of success and minimize the possibility of an RFE or denial? 

 

I recommend starting by taking a close look at the job description.

Time and again, I see petitions that give a short and vague list of job duties and assume that the adjudicating officer knows that the position is a specialty occupation based on the job title. For example, I see so many job descriptions for Software Developers that simply say:

“Design, development, coding, testing, debugging, and documentation of computer applications”

The officer is forced to make the determination whether a Bachelor’s degree in Computer Science is required based on just a few bullet points with maybe a few software tools mentioned.

To be honest, this was normally acceptable in prior years. But, now it’s time to step up your game if you want to get the visa.

 

For example, let me give you a job description for an immigration attorney that is short and vague:

“Represent clients before government agencies, present and summarize cases to adjudicating officers , and advise clients on legal obligations”

 

Here is the kind of detail I think is now needed:

Meet with individuals involved in immigration matters to provide information and clarify issues;

Analyze and interpret laws and regulations and exercise independent judgement to determine best visa for specific situation;

Examine legal data to determine advisability of successful outcome;

Gather and review company documents, beneficiary education, experience and immigration documentation to verify qualifications for desired visa;

Review government publications, Job Zones and SVP to select SOC code and wage level;

Advise employer on compliance with notification and wage requirements;

Develop strategies and arguments in preparation for presentation of case for specific visa classification;

Prepare, draft, review, and file visa application and proper supporting documents;

Handle client funds and track time in accordance with ethical rules;

Draft legal arguments in response to specific agency requests;

Advise visa applicant of legal obligations for maintaining immigration status;

Make recommendations to employer for ensuring continued compliance;

Supervise activities of other legal personnel;

Write articles on topics of interest to clients;

Advocate for new or improved legislation or regulations;

Use iCERT, OFLC database, OOH, ONET, INSZoom, Quickbooks, Client Database, etc. Requires sound understanding of laws, legal codes, government regulations, executive orders, agency procedures, and political processes.

 

 

 

Be specific regarding the exact job being offered, talk about specific projects or products that will be part of your daily routine. Discuss the level of judgement exercised, whether supervision of other workers is involved, and any advanced skills that are required. This will help ensure that the proper SOC code and wage level are selected before filing. And, most importantly, a detailed job description will make it easier for the officer to conclude that the job qualifies and hit the Approve button. You may also want to include the percentage of time to be spent on each duty and how the beneficiary’s education relates to the position.

[yaman]

good post..

[Staysafebro]

I write project descriptions, test cases and set up meetings earning 70k . Is this okay ba?

[TampaChinnodu]

Just now, Staysafebro said:

I write project descriptions, test cases and set up meetings earning 70k . Is this okay ba?

BA job aa ?

[Staysafebro]

Just now, TampaChinnodu said:

BA job aa ?

CEO level lo untadhi mari 

We belong to upper management. 

[Prince_Fan]

Good Post TampaChinnu

[MeraBharat_Mahan]

gp

 

[BillMarkSteve]

Gp

[jpismahatma]

More money to lawyers.. rahul Reddy mf got so many $$ its not enough ..