H-1B Request for Evidence Trends 2014

By Ekaterina Powell, Esq.

Since the H-1B season kicked off on April 1, 2014, USCIS has started issuing Requests for Evidence (RFE). This article will address the RFE trends and practice tips.

Below are 4 main points USCIS addresses in the RFEs:

  • Specialty Occupation
  • Sufficient Specialty Occupation Work
  • Right to Control the Beneficiary’s Employment
  • Beneficiary’s Qualifications

 1. Specialty Occupation

In order to qualify for an H-1B, you have to show that the proposed position is what’s called a “specialty occupation.” Specialty occupation is defined 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.”

If a particular position requires just a generalized bachelor’s degree however, it will not satisfy the specialty occupation standard. USCIS holds the position that the occupation has to require a degree in a specific specialty. USCIS does not further explain what “specific specialty” means, which is subject to interpretation. Generally, USCIS accepts that a position, which requires a bachelor’s degree in a narrow field of related fields as a normal minimum requirement for entry into the occupation, could satisfy the specialty occupation standard.

Neither the statutes nor the regulations or policy memoranda have a list of specialty occupations, which presents a lot of challenges for employers trying to bring qualified workers from abroad. Because there is no list of occupations that would qualify as “specialty occupations,” each H-1B petition is analyzed by USCIS on a case-by-case basis.

What is even more confusing is that even if USCIS finds one occupation to be a specialty occupation, it can deny another H-1B petition for the same position. This is because USCIS does not consider the job title on its own in its determination whether the position qualifies as a “specialty occupation.” Instead, the specific duties of the offered position combined with the nature of the petitioner’s business are factors that USCIS considers.

When USCIS has concerns that a particular position may not be complex enough to qualify as a specialty occupation, it issues an RFE asking to prove one of the following prongs:

  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 is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Even though the language of the regulations provides that it is enough to satisfy any one of the prongs above, it is advisable to address each of them and to submit proof for as many elements as possible with the RFE response.

In particular, it is helpful to include evidence of job advertisements found on the internet for the same position with the same degree requirements from similar businesses and letters from other businesses explaining their hiring practices for the same position. The goal is to show that other companies in the same field similar to Petitioner’s business also have bachelor’s degree requirement for the position offered to the H-1B beneficiary.

In addition, it proves helpful to submit Petitioner’s past employment practices of hiring degreed individuals for the same or similar positions by providing employment records (quarterly wage reports, W-2s) and degrees of those individuals.

Finally, it is helpful to explain in lay terms why the position offered to the beneficiary requires a degreed individual. Here, Petitioners can focus on particular complex projects to be handled, which can be documented by providing project plans, evidence of tasks to be completed on each project, evidence of similar completed projects, etc.

The nature of the company’s business is also important to address. If the beneficiary’s services are not the primary line of the company’s services, Petitioners should address how the beneficiary’s services will be used.

2. Sufficient Specialty Occupation Work

The second most common RFE issued by USCIS is regarding sufficiency of specialty occupation work available to H-1B beneficiary for the entire duration of the requested H-1B validity period.

This issue most often comes up with small petitioning businesses and start ups when USCIS is concerned that the company is too small to host a particular position, and thus they need more information showing that there is a need for the particular position within the company and that there is enough work for the beneficiary throughout the requested H-1B period.

To respond to such RFE, it is helpful to provide evidence of the company’s past, present and future projects, contracts with clients, statements of work, work orders, service agreements or letters from customers for provision of services, critical reviews of the company’s products, products’ market analysis or similar documents.

 3. Right to Control Beneficiary’s Employment

If the H-1B beneficiary is also an owner/part owner of the petitioning company, USCIS may issue an RFE asking to provide evidence to show that the company will have the right to control the beneficiary’s employment and that the H-1B beneficiary is not hiring him/herself.

If you own your company you may be able to demonstrate that an employer-employee relationship exists if the control of your work is exercised by others. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement.

For such an RFE, it is helpful to explain how the company will supervise and otherwise control the beneficiary’s employment supported by the company’s documents covering corporate structure of the business and ownership levels. Specifically, the petitioner’s business formation documents should sufficiently explain how the company is organized and who within the company has the right to control the work of all the employees, including the H-1B beneficiary.

With Corporation, Petitioners could show that the Board of Directors will control the work of the H-1B beneficiary, as provided for in the Bylaws. However, what’s important to point out in response to RFE is the way the Board of Directors is formed. If the Bylaws state that the Board is selected by the majority of shares entitled to vote and the H-1B beneficiary in fact holds the majority of shares, the H-1B petition may be denied as USCIS can find that there is no requisite right to control the beneficiary’s work since the beneficiary him/herself can appoint the Board.

With LLC, it is easier to show the right to control the H-1B employee’s work if LLC is structured in a way that the managing member who has the hiring/firing authority is not the H-1B employee.

Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes:

  • Term Sheet
  • Capitalization Table
  • Stock purchase Agreement
  • Investor rights Agreement
  • Voting Agreement
  • Organizational documents and operating agreements
  • Performance Review Process
  • Employment Agreement/Offer Letter
  • Organizational Chart showing the company’s hierarchy

Before you proceed with the H-1B case for a part-owner or sole owner of the company, it is important to consult with the counsel to see what options are available and how the business has to be structured to have a chance of passing the H-1B master.

4. Beneficiary’s Qualifications

H-1B beneficiary must possess a bachelor’s degree or equivalent work experience. The degree of the beneficiary must relate to the job duties of the position offered. If the degree is not normally associated with the occupation offered, it is critical to explain how the degree is related to the job duties in connection with the company’s business.

If USCIS is not satisfied with the beneficiary’s qualifications, it can issue an RFE asking to provide evidence of a related degree or equivalent work experience or the combination of both.

USCIS has adopted a so-called “three-for-one” rule, by which three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks. Thus, if you do not have any college level education, you will need at least 12 years of qualifying work experience.

The equivalence of work experience to a degree can be determined by one or more of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty; (b) the results of college-level equivalency examinations or special credit programs; or (c) certification or registration from nationally recognized professional associations for the specialty. See 8 C.F.R. 214.2 (h) (4) (iii) (D).

An evaluation by a college official is usually the most common form of work experience evaluation. As a practical matter, USCIS often accepts professors’ opinions that the H-1B beneficiary’s work experience is equivalent to a bachelor’s degree. However, there are a lot of special requirements for such professors’ opinions that are not covered by this article. Please note that credentials evaluation services are not allowed to evaluate your work experience to prove that work experience is equivalent to a degree. Regulations limit the scope of foreign credential evaluators to evaluating only foreign education.

If your degree is unrelated to the position offered and you have qualifying work experience in the related occupation that falls short of 12 years, you may still be able to establish that you qualify for the H-1B. College professor who is eligible to grant credit for work experience may be able to credit you some of your school units for general or related subjects and use them in combination of your work experience for equivalency to a U.S. Bachelor’s degree in a field related to the occupation offered.

Proof of the qualifying work experience usually includes letters from your former employers or co-workers if your employer no longer exists. The letters from previous employers should contain the location, dates of employment, job title, and the duties you had, as well as the theoretical knowledge used and its practical application.

If you require help with the RFE response, please do not hesitate to contact our office.