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Guide to Specialty Occupation RFE
Every year thousands of highly skilled foreign nationals apply to work in the U.S. on the H1B visa. The long list of requirements for an H1B visa, including the “specialty occupation” requirement isn’t new. What is new, however, is the increase in specialty occupation RFE (Requests for Evidence) the United States Citizenship and Immigration Services (USCIS) has been issuing.
One of the most common reasons why the USCIS issues an RFE in H1B petitions is because, in their application, the petitioner didn’t show the position they will be filling qualifies as a specialty occupation. Because the application lacks the required evidence, the USCIS issues a specialty occupation RFE.
In this article, we’ll look at what a specialty occupation is, what you need to prove you meet this requirement, and what can do if you receive a specialty occupation RFE.
What is a Specialty Occupation?
One of the requirements to qualify for an H1B visa is you have to prove the position you will be taking up in the United States is a “specialty occupation”.
A “specialty occupation” is defined in the Immigration and Nationality Act 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.”
Basically, this definition requires two things for a position to be a specialty occupation:
- The position must require no less than the equivalent of a U.S. bachelor’s degree in a field that is related to the position, and
- The H1B applicant must have no less than the equivalent of a U.S. bachelor’s degree in an area related to the position’s requirements.
How is a Specialty Occupation Determined
For a position to pass the test of being a “specialty occupation“, the position must meet at least one of the following requirements:
- A bachelor’s or higher degree (or its equivalent) is usually the minimum requirement to enter the specific position
- The degree requirement is common to the industry in similar positions among similar organizations or, alternatively, an employer may show that its particular position is so complex or unique that only an individual with a degree can perform it;
- The employer typically requires a degree or its equivalent for the position; OR
- The nature of the specific duties required for the position is so specialized and complex that the knowledge needed to perform the duties is usually associated with a bachelor’s or higher degree.
So, before the position you are offered in the U.S. will be regarded as a “specialty occupation,” you must prove the position meets at least one of the above four criteria.
Also, keep in mind that the position requires a “bachelor’s degree” isn’t enough to prove specialty occupation. The bachelor’s degree required must be in a “specific specialty” or a specific field related to the position. So, even if you show the position requires a bachelor’s degree, the bachelor’s degree that is required must still be in a specific field related to the position.
What is a Request for Evidence?
When you apply for a visa, the USCIS has to determine whether your application and the information and documentation you provided prove you meet the visa requirements. If the USCIS agent believes you haven’t provided sufficient evidence to prove this or they have specific questions that relate to your application, the USCIS will issue you with an RFE.
An RFE isn’t a denial, so don’t worry if you get one. In fact, you can see it as a positive as there is still a chance your visa can be approved.
You can read more about Requests for Evidence here.
Unfortunately, even though the purpose of an RFE should be to gather more evidence after a USCIS agent has properly considered your case, the USCIS also issues RFEs for more general reasons.
Why Would You Get an RFE for a Specialty Occupation?
The simple truth is specialty occupation RFE has been on the rise since the April 2017 Presidential Executive Order.
USCIS agents often reference the Occupational Outlook Handbook (OOH) as a source for whether a position is a specialty occupation. If a USCIS agent believes the typical OOH requirements are not similar to your position’s duties, they can issue an RFE. Or, if the USCIS agent believes the entry-level educational requirements for your position according to the OOH are not a bachelor’s degree, the USCIS agent has the discretion to issue an RFE. But the USCIS agent can use his or her discretion to issue an RFE for any other reason as well.
An RFE is very likely if your position has an atypical title or if it doesn’t fit perfectly into an existing OOH category.
Recently USCIS agents have also been drilling into details more and more. USCIS agents don’t just consider whether the position is, in fact, a specialty occupation. They also consider whether all the duties each week (and even each day) are similar to specialty occupation duties and responsibilities.
Considering this, if you are applying for an H1B visa, the chances you will be receiving a specialty occupation RFE are relatively high.
What to Do if You Get a Specialty Occupation RFE
If you get a specialty occupation RFE, don’t stress. It is a chance to re-argue your case to the USCIS. But even though an RFE is a second chance, it is also probably your last chance. So, it’s crucial if you get a specialty occupation RFE to make sure you answer it correctly and strategically.
In some situations, your answer will have to be based on legal doctrine. Or you may have to provide documentation such as an expert opinion letter (a letter from an expert in the field vouching that the position is a specialty occupation) or a manager support letter (showing your company’s motivation on why the position is a specialty occupation).
Approaching an immigration attorney at this point may be your best option to ensure your application is successful. An immigration attorney will know exactly what documents to provide to prove your case.
- 6 Ways to Find an H1B Visa Sponsorship
- How to Change Jobs on an H1B Visa
- The Non-ECR Category: A Guide
- H1B Visa Stamping: H1B Visa Interview Documents and More
- Complete Guide to the H1B to Green Card Process
- What Are My Options for Change of Status Visa Stamping If I Am Already in America?
- Guide to the H2B Visa
- H1B Transfer: How To Change Jobs on an H1B Visa
If you are applying for an H1B visa, you should expect a specialty occupation RFE. But this is nothing to be afraid of. Being ready for a specialty occupation RFE and having a strategy on how you will tackle it could make all the difference. Consider approaching an immigration attorney for help. Even though this will cost more in the short-term, it could be the difference between your H1B denial or approval.