Tag Archives: specialty occupation

Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. 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

2. the employer normally requires a degree or its equivalent for the position

3. 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 bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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H-1B Filing Season Begins April 1 (visas expected to run out in first week)

On April 1, USCIS begins accepting H-1B cap petitions for employment in each fiscal year (October 1 of the current year through September 30 of the next year).

Employers who wish to have cap-subject foreign workers start employment in the new fiscal year should prepare to file their H-1B petitions on April 1.

F-1 student visa holders using Optional Practical Training (OPT) work authorization and foreign nationals who have never held H-1B status are subject to the H-1B cap.

What is the H-1B Cap? 

Congress sets an annual limit on the number of new H-1B petitions that USCIS can approve each fiscal year. This is known as the H-1B cap. 

Although Congress may increase or lift the cap, the current annual cap for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for employees with a U.S. master’s degree or higher. Thus, the annual quota is 85,000 H-1B petitions.

Of the 65,000 H-1B visas, 6,800 are reserved for foreign workers from Chile (1,400) and Singapore (5,400), due to free trade agreements.  This effectively reduces the number of regular H-1Bs available to 58,200 for most visa applicants.

How Long is the H-1B Cap Filing Period?

USCIS accepts H-1B cap petitions until the annual quota is met.  In many recent years, the quota has been filled within the first five business days of April.

In fiscal year 2014, the regular H-1B visa cap of 65,000 was reached on April 5, 2013 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 5, 2013 (5 days). 

In fiscal year 2015, the regular H-1B visa cap of 65,000 was reached on April 7, 2014 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 7, 2014 (5 days).

Due to economic growth and increased demand for H-1Bs, the annual cap will likely be reached in the first few days of April this year.

What is the H-1B Visa Lottery?

USCIS monitors the number of H-1B filings and notifies the public of the date on which it receives enough petitions to reach the cap. This date is known as the “final receipt date” (final day of acceptance).

If USCIS receives more H-1B petitions than it can accept, it will use a visa lottery system to randomly select the number of petitions required to reach the annual cap. This involves a computer-generated random selection of H-1Bs from the pool of petitions received on the final day of acceptance.

USCIS labels and identifies each of the petitions with a unique number that is used for random selection. The lottery allows USCIS to apply the remaining number of H-1B visas to the petitions received on the final receipt date.

USCIS first conducts the random lottery of the 20,000 H-1B cases eligible for the master’s cap exemption. Those cases not selected under the H-1B masters cap will then be included in the random lottery for the regular 65,000.

USCIS sends the list of all selected petitions numbers to the service centers. The USCIS service centers will then process and adjudicate the selected petitions.

Cap-subject H-1B petitions that are not randomly selected, as well as those received after the final receipt date, will be rejected and returned to the attorney or employer with the filing fee(s).  If there were duplicative or multiple filings for an employee by the same employer, no fee will be returned.

Last year, employers began receiving receipt notices for randomly selected H1B petitions in the final week of April. Most employers did not receive rejected petitions until the first week of June.

Who is Exempt from the H-1B Cap?

The H-1B cap does not apply to cap-exempt employers or cap-exempt foreign workers. Cap exemptions apply if:

  • Your employer is an institution of higher education (e.g. a college or university)
  • Your employer is a non-profit organization affiliated or related to an institution of higher education (e.g. a hospital or research facility)
  • Your employer is a non-profit research organization or government research organization
  • Your employer (third party petitioner) is  not cap-exempt, but your employment is at an H-1B exempt institution (i.e. you will physically work at the institution of higher education or related or affiliated nonprofit and there is “nexus” between the work performed and the normal purpose of the nonprofit).
  • Your employment is concurrent with exempt employment
  • You were previously counted against the H-1B cap in the last six years (i.e. you were the beneficiary of an approved cap-subject H-1B petition with an effective date within the preceding six years, whether you are in the U.S. or abroad)
  • You have a U.S. master’s degree (until the 20,000 master’s cap runs out)
  • You are a physician with a Conrad 30 J-1 waiver, regardless of the nature of your employer

The H-1B filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. An H-1B petition that is not subject to the cap may be filed at any time and not be subject to the annual quota.

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The filing date is when USCIS receives the H-1B petition (required forms, supporting documents and correct filing fees), not the date that the petition is postmarked. Unless an exemption applies, employers should plan to file their H-1B cap petitions on April 1, instead of relying on the filing window.

Although it’s not too late to prepare for an April 1st H-1B filing, employers and foreign workers need to be aware of potential delays and snafus, such as when obtaining a foreign credential evaluation and submitting the Labor Condition Application.

An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

If employers miss this year’s H-1B filing season, the next earliest date they may file their H-1B cap petitions is April 1, 2016, in which case employment may not begin until October 1, 2016. This might require them to consider other visa options (e.g. O-1, L-1 and TN), which have drawbacks and limitations.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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 Photo by: Alan Cleaver