The following Case Study is based on an analysis of a rejected appeal submission to the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS). The full text of the appeal decision, with identifying information redacted for privacy protection, can be found here.
This case was an appeal of an H1-B Visa Petition rejection. The petition was originally submitted in order to establish employment for a foreign worker who was uniquely qualified to fulfill the requirements of a “Specialty Occupation”. To successfully petition for an H1-B visa, there are several requirements that must be met by the occupation, the specific position being offered, and the individual who is accepting the position. A more detailed description of H1-B Visa requirements and what qualifies as a specialty occupation can be found on the USCIS website, or on USCES.ORG. For the purposes of this discussion, we’ll try to simplify the requirements discussed in this appeal.
To qualify as a “specialty occupation”, there must be highly specific knowledge and skill that requires a bachelor’s degree or higher (or the foreign equivalent) in order to gain employment in the field. The offered position and similar positions across the industry must also require the bachelor’s degree or higher (or the foreign equivalent) as a condition of employment. The specific duties required of that position are key pieces of evidence that can establish the need for specialized knowledge, education, and training. Finally, in order to successfully complete the H1-B petition, the beneficiary (the person accepting the position) must possess the specific education, knowledge, and skill required to qualify them to work in that position within the specialty occupation.
In order to support the case for a valid H1-B visa, the employer must submit evidence that qualifies the occupation, position, and beneficiary for work in the specialty occupation. This evidence may include expert opinion letters; occupational data that describe specific fields, their employment trends, and training requirements; specific information regarding the specialized duties of the position; and/or information from parallel positions that support the need for specialized education in training.
Unfortunately, the appeal discussed was rejected, as the evidence submitted did not firmly establish that the position qualified as part of a “specialty occupation”. Let’s look at some of the specific reasoning the AAO used to come to this decision.
Defining a Specialty Occupation
One of the key requirements that the petitioner was unable to establish in this appeal was that the occupation was a “specialty occupation”. The beneficiary did have a bachelor’s degree (or the equivalent) as a “Computer Systems Analyst”, but the AAO determined that the evidence submitted did not establish that the beneficiary’s specialized degree was required to establish employment in the specified occupation. This is an important distinction. While the beneficiary educational background may have made him more qualified for the position, the AAO determined that it was not required to work in the occupation.
There are many resources where this kind of information on occupational trends can be acquired. The Bureau of Labor and Statistics’ Occupational Outlook Handbook and the Department of Labor’s CareerOneStop website are both referenced in the decision. Both of these resources provide information about job availability, educational requirements, and standard salaries for a variety of career’s in different occupational categories. Although the petitioner did use these website’s for evidence, in both cases the occupational information for Computer Systems Analyst indicates that a specific degree in Computer Sciences is not a requirement for employment in this field.
Establishing Specialized Duties of the Position
Another aspect of this appeal where the petitioner failed to gather sufficient evidence was whether the specialized duties of the position required a bachelor’s degree or higher (or the foreign equivalent). The basic issue with the evidence they submitted was that the AAO determined that not enough specific information was given regarding the duties required of the position.
Not only did the petitioner fail to establish the specialized nature of the required position, but also, multiple expert opinion letters were submitted which failed to provide adequate support for the opinion that this job required a bachelor’s degree or higher (or the foreign equivalent). While both expert’s expressed the opinion that this degree made the beneficiary qualified for the position, they were unable to provide any specific, statistical evidence to support their opinions that the individuals degrees were essential to the position.
Successfully submitting and H1-B visa is a difficult prospect, as the petitioner needs to prove that the occupational field, the specific position, and the beneficiary all meet certain criteria in order for the visa to be approved. In the case discussed above, the beneficiary had advanced degrees which certainly qualified for the position, but the petitioner could not provide evidence that this advanced degree was required to complete the responsibilities of the job. It appears, from the evidence submitted, that this position and occupation do not actually meet the requirements for a “specialty occupation”. It’s possible that there is a more appropriate visa category for which the beneficiary could have applied.
The importance of two main areas are emphasized in this appeals decision. First, the importance of a well-written expert opinion letter is essential for supporting the petition. Second, it is necessary that a complete and detailed record of an individuals’ educational experience is presented in the evidence for numerous visa type’s, including the H1-B.
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