When reviewing the cases of the Administrative Appeals Office (AAO), it is not difficult to find that most of the H-1B cases were rejected because the applicant did not prove that his or her proposed position belongs to a specialty occupation, that is, the position applied for is a specialty occupation that requires a theoretical and practical application of a body of highly specialized knowledge, and usually requires the attainment of at least a bachelor's degree or higher to be competent. How to prove that the position belongs to a specialty occupation is the key and difficult point of H1B application. Based on the recent AAO cases and court cases, this article will analyze how to prevent USCIS from questioning the issue of specialty occupation.
The USCIS often refers to the Occupational Outlook Handbook (OOH) of the Department of Labor (DOL) to check whether the proposed position that the applicant describes is a specialty occupation. Therefore, when the applicant drafts the job responsibilities/applies for LCA/drafts the company support letter, he or she should use the requirements and responsibilities of a specific position in OOH and limit the proposed position to only this one OOH position (such as "data analyst"). The job responsibilities that are too broad will cause the USCIS to question whether the proposed position is a specialty occupation, while the job responsibilities that apply to several OOH positions will cause the DOL, when setting the salary of the position, to select the position with the highest salary requirement.
According to Innova Solutions, Inc. v. Baran, an opinion issued by the Ninth Circuit Court of Appeals, if a position in OOH typically requires a bachelor's degree or above, even if OOH indicates that some workers without a bachelor's degree are also doing the job, then the position still meets the legal requirement that H-1B position normally requires a bachelor's degree or higher. USCIS shall not require the applicant to prove that the job requires a bachelor's degree or higher simply because the OOH mentions that some people only need a bachelor's degree or below to perform the OOH position. Therefore, the job responsibilities in OOH can help to prevent USCIS from questioning the issue of specialty occupation.
However, AAO also made it clear that simply copying or slightly changing the job responsibilities in OOH could not meet the specialty occupation requirement for the position. The applicant must provide more details to the OOH job responsibilities, in view of the company's business and the actual job duties of the position. In the past six months, the AAO cases have shown that AAO has begun to have higher requirements for the specificity of job responsibilities. The ways to provide that specificity include: providing the company's organizational chart and giving different percentages of time devoted for different duties.
In addition, when describing the job responsibilities, we should consider the company's context, for example, we should add details of the company's overall business and the specific projects currently being conducted by the company into our descriptions of the job responsibilities, and to add details of different departments, teams, and personnel of the company into the responsibilities of the position (describe their interactions, the role of the proposed position within its team, and so on). In particular, AAO began to question the job responsibilities that rely heavily on technical terms (such as various programming languages, technical tools, frameworks). AAO believes that because many programming languages can be learned in high schools and vocational schools, this kind of job description is vague, not specific, and cannot prove specialty occupation. Therefore, it is particularly important to give specific company context to a position’s technical work.
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