With the recent trend of H-1B adjudication, it might be a good idea for employers to start working with counsel earlier than usual.
An H-1B position must be a specialty occupation; i.e., the position typically requires theoretical and practical application of a highly specialized body of knowledge where a normal entry to the position is a bachelor’s degree in a related field. In years past, the biggest challenge has been getting selected in the lottery, given that demand always outpaces supply.
This year, aside from the hurdle of the lottery process, employers and immigration attorneys around the country are witnessing an unprecedented shift in H-1B adjudication. Specifically, US Citizenship and Immigration Services (USCIS) are more frequently challenging and scrutinizing whether an H-1B position is a specialty occupation by requiring employers to provide more evidence (often more than what the law requires), thereby ostensibly demonstrating that the offered position is a specialty occupation. No occupation is immune from this heightened scrutiny, even in cases where the question of specialty occupation appears indisputable, as with physicians, engineers, accountants, and statisticians. USCIS has issued 45 percent more Requests for Evidence, which require an employer to provide further evidence that a position is a specialty occupation, than last year, which assert the following:
- The proffered position is not a specialty occupation because the position does not require a bachelor’s degree in a specific field.
- The proffered position is not a specialty occupation because the employer’s acceptable fields of study do not relate to each other.
- The proffered position is not a specialty occupation because the use of the Level 1 wage means the position is entry level, and therefore, is not complex or specialized enough to warrant an H-1B.
- The petition cannot be granted because Level 1 wage is not the appropriate wage given that the duties are too complex.
It is Employers Council’s recommendation that employers considering filing for FY2020 H-1Bs start as early as possible to solidify a well-articulated job description that explains each job duty in detail with examples. In addition, employers and foreign professional workers should review the transcripts and course descriptions and connect the skills gained from the course(s) to each duty.
Employers Council works closely with our members in preparing and submitting H-1B petitions. Please contact the Manager of Immigration Services, Liz Dinnen, at EDinnen@EmployersCouncil.org or 303.223.5430 for assistance.