During last year’s H-1B cap, USCIS applied a rigorous level of scrutiny to H-1B petitions that led to a record number of requests for evidence (RFE) and most likely denials, as the numbers are almost sure to evince. Many of the challenges that USCIS posed bordered on the ridiculous, such as stating that a position with a level 1, entry-level, prevailing wage on the Labor Condition Application (LCA) did not rise to the level of an H-1B specialty occupation requiring at least a bachelor’s degree.
Here are some of my tips in circumventing an RFE or denial and making an H-1B case as strong as possible:
- Provide a comprehensive discussion of how level 1 positions still require specialized knowledge that only a bachelor’s degree provides, including a reference to regulations, statutes, the industry standards for professionals and details of the petitioner’s particular position and how its job duties are so advanced that only those with specialized knowledge could reasonably perform them;
- Provide a chart that includes the job duties, specialized knowledge required to perform them and the coursework completed by the beneficiary providing such specialized knowledge.
- Submit copious documentation of the company’s track record of hiring other employees in similar positions who have at least a bachelor’s degree in a related field;
- Enclose online job ads for companies in similar industries for parallel positions and make sure that the nature of the companies is as close as possible to that of the petitioner; and
- Include an expert opinion that refers to the details of the position and of the nature of the company.
Unfortunately, even if the H-1B petition contains such prodigious and credible information and documentation, there is a good likelihood that the petitioner will receive an RFE from USCIS. The petitioner should respond by emphasizing the original documentation and information and offering some new evidence.