Overcoming H1B Specialty Occupation Requests for Evidence

When filing an H1B petition, employers may receive a request for evidence (RFE) from the U.S. Citizenship and Immigration Services (USCIS) asking for additional information before a decision is made. One of the most common issues raised in an RFE is whether the job qualifies as a “specialty occupation.” This article explains what a specialty occupation is and provides practical tips on what can be done to better avoid RFEs on this issue, and how to address specialty occupation RFEs if and when they do arise.

What is an H1B Specialty Occupation?

According to U.S. immigration law, a specialty occupation is defined as a job that requires BOTH:

• The theoretical and practical application of a body of highly specialized knowledge
• A minimum of a bachelor’s degree (or its equivalent) in a specific or directly related field of study to perform the role

In simpler terms, the position must be complex and specialized enough that it cannot be performed without at least a bachelor’s degree (or higher) in a relevant field.

Avoiding Specialty Occupation RFEs

To reduce the risk of receiving an RFE, employers and immigration practitioners can take proactive steps. Here are a few suggestions:

Craft Clear and Detailed Job Descriptions

Submit a strong set of job duties in the initial H1B filing. The description should strike a balance – neither too technical nor too simplistic.

Choose the Right Occupational Classification

Select an appropriate standard occupational classification (SOC) code in the labor condition application (LCA) that aligns with the job duties. Ensure the SOC code falls under O*Net job zone 4 or higher.

Consider a Higher Prevailing Wage Level

Filing with a higher wage level in the LCA can strengthen the case, especially if an RFE is issued. However, the wage level must reflect the actual minimum requirements for the position.

Specify Relevant Degree Fields

Avoid stating that a bachelor’s degree in a wide range of unrelated fields is acceptable. For example, general engineering, science, or business are often considered too broad.

Include an Expert Opinion Letter

Consider submitting an expert opinion letter explaining that the occupation typically requires a bachelor’s degree in a specific or related field.

Responding to a Specialty Occupation RFE

Even with careful preparation, the USCIS still may issue an RFE. To successfully respond, the employer must demonstrate that the position meets at least one of the four regulatory criteria for a specialty occupation. Meeting more than one criterion increases the chances of approval.

Show that a Bachelor’s Degree is Normally Required

Provide evidence that a bachelor’s degree (or higher) in a specific or related field is the standard minimum requirement for the position. Resources like the U.S. Department of Labor’s O*NET or occupational outlook handbook (OOH) can help support this claim. Additionally, include USCIS guidance, academic research, or other relevant materials that reinforce the degree requirement.

Demonstrate Industry-Wide Standards

Demonstrate that requiring a bachelor’s degree (or higher) is common practice across the industry for similar roles. This can be done by submitting:

• Job postings from reputable websites showing degree requirements for comparable positions
• Letters from industry associations or other companies confirming the degree requirement for similar roles

Provide Evidence of the Employer’s Hiring Practices

Show that the employer typically requires a bachelor’s degree (or higher) for the position. This can include:

• Job advertisements posted by the employer for the same or similar roles
• Documentation showing that current or past employees in similar positions held the required degree

Highlight the Complexity of the Job Duties

Demonstrate that the job duties are so complex that they require at least a bachelor’s degree (or its equivalent) to perform. To support this:

• Submit detailed job duties, including the percentage of time spent on each task.
• Explain why a degree in a specific field is necessary to perform the role.
• Include a letter from a university professor or industry expert supporting the degree requirement.

Conclusion

Receiving an RFE can be stressful for both employers and employees, as it could lead to a denial and potentially put the foreign national out of status. However, an RFE also provides an opportunity to clarify how the H1B petition meets the eligibility requirements. Properly strategizing both before filing and after receiving an RFE is critical to a successful outcome.

At The Murthy Law Firm, our attorneys have extensive experience successfully responding to RFEs, including those related to H1B specialty occupations. We are here to help employers navigate the process and achieve the best possible results.

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