USCIS announced that as of April 6, 2018, the H-1B cap has been reached for fiscal year 2019 (FY 2019) with a start date of October 1, 2018. It will now conduct a computerized lottery to determine which H-1B petitions will be allocated one of the 85,000 bachelor’s degree cap visa numbers and one of the additional 20,000 US master’s degree cap visa numbers. This process of notifying petitioners has taken an average of four to six weeks in the past several years.
It should be emphasized that even if an H-1B petition is assigned one of these numbers, USCIS must still approve the petition before the beneficiary can start as early as October 1, 2018. If the petition is not approved by October 1, 2018, then the beneficiary cannot start working in H-1B status until it is approved. With the suspension of premium processing for H-1B cap cases this year, anticipated to be available again by September 2018, many petitions may not receive an approval by October 1, 2018. Premium processing requires USCIS to make a decision or request evidence within 15 calendar days of receipt of the petition (or the Form I-907 to request a conversion from traditional to premium processing). If additional evidence is requested, then USCIS has 15 calendar days to make a decision after the petitioner’s response to the request is received by USCIS.
Last year, with the enhanced scrutiny by USCIS of H-1B petitions, there was a record number of requests for evidence (RFEs). USCIS challenged core requirements of the petition in an unprecedented manner, some of these challenges unreasonable and successfully overcome by my office. For example, USCIS started questioning whether a position with a level one prevailing wage noted on the Form EA 9035 Labor Condition Application (LCA) could be considered a specialty occupation for H-1B purposes, requiring specialized knowledge that only a bachelor’s degree would normally provide. My office showed that the level of a position is not relevant or controlling, but the nature of the knowledge required to reasonably perform the job duties is the critical question. The level of a position simply reflects the worker’s position in the employer’s hierarchy. USCIS was conflating the level within a particular occupation with the overall skill involved in every level of the occupation itself. Also, the four levels of prevailing wages relates to the requirement that employers pay the appropriate prevailing wage to its H-1B employees and is wholly divorced from the determination of whether a position is a specialty occupation for H-1B purposes.
Most importantly, the regulations at 8 CFR §214.2(h)(4)(ii) and (iii) and the statute at INA §101(a)(32) are the binding authorities on the definition of a specialty occupation for H-1B purposes.
The regulation at 8 CFR §214.2(h)(4)(ii) provides the controlling definition for a specialty occupation:
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The regulation at §214.2(h)(4)(iii)(A)(1)-(4) further defines a specialty occupation is one satisfying one of the four requirements listed below:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the
Also, a position is considered professional if listed in INA Section 101(a)32).
Although my office and H-1B petitioners across the country last year successfully challenged these level 1 RFEs, it is anticipated that USCIS will continue to question the professional nature of a position with a level wage in the LCA. However, we are more prepared than ever to demonstrate the speciousness of such hurdles.