Is My Job a Specialty Occupation?

Throw a dart. Roll the dice. Get on your knees and pray. Nowadays it seems like these are your only options when petitioning for an H-1B visa on behalf of your client. Immigration processing appears chaotic and random, almost designed to exasperate you to the point where you want to throw up your hands and quit.

And who could blame you? Visa applicants with sterling and highly specialized professional records are receiving RFEs at an alarming rate. The stories would make you laugh if the real-life consequences weren’t so painful.

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The problem: who knows what a “specialty occupation” is anymore?

Take the ongoing case of Anubhav Shandilya, an Indian immigrant who came to the United States under H-1B status to work as an Equipment Logistics Engineer for a construction company. He did such great work for the firm that they promoted him to Assistant Project Manager, a position requiring specialized knowledge of construction-related finance, procurement, contracts, and scheduling.

The firm, Balfour Beatty Construction LLC, filed a 2017 H-1B Extension Petition to retain Anubhav. In their letter, the company made a clear and compelling case for his eligibility. They emphasized the complexity of the Assistant Project Manager position. They noted that a bachelor’s degree in construction management was a minimum requirement for the position (and Anubhav had a master’s). And they highlighted Anubhav’s extensive professional experience in the construction management sector.

And then came the cat and mouse game. The USCIS issued an RFE, claiming that the Assistant Project Manager role wasn’t a specialty occupation. The firm filed an RFE response letter containing a dizzying amount of additional detail and evidence. And, in its final ruling, the USCIS denied the petition.

Anubhav, his wife, and his two (US citizen) children are facing deportation and the dreadful possibility of having to uproot the lives they’ve made in America.

How to Deal with H-1B Uncertainty

The case of Anubhav Shandilya, which was recently filed in the U.S District Court for the District of Columbia, is becoming more and more representative of the Kafkaesque nature of immigration processing, where the ambiguous and subjective de facto rules of the game seem to be overriding the de jure.

So what can you do when you feel like you’re sending your visa applications, supporting documents, and follow-up letters into a randomizer?

Well, the first thing to do is recalibrate your expectations.

Over the last few years, the rules of the game have undoubtedly changed when it comes to immigration processing, and it’s important to recognize that you might have to put in more legwork to prove your client’s specialty occupation. You should go in to the process expecting to receive a detailed RFE that asks for

1. Answers to questions you may have already answered in your initial filing.
2. Minutia about the position in question.
3. Explanations of previous documentation that may seem obvious.  

But don’t panic. Luckily, there are resources in your corner like Park Evaluations to help you put together a winning RFE response letter.

Which Jobs Qualify as a Specialty Occupation?

What happens after you’ve reset your expectations? The next step should be to understand—as best you can—how the new, de facto rules regarding specialty occupations operate. Though it’s not entirely clear what the new standards are (after all, they are not encoded in the statutes regarding nonimmigrant workers), we can do our best to anticipate what should count as a specialty occupation.

While the USCIS receives H-1B visa applications in a vast number of professional areas, from dentists to market research analysts, we thought we’d use some hypotheticals from the legal field as an example.

So let’s take a look at three different worker types in the legal field and determine if, based on the tighter H-1B standards, you would be eligible for H-1B status.

As you know, the general criteria for a job to qualify as a specialty occupation (per the USCIS website) are:

• Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
• The degree requirement for the job is common to the industry, or the job 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.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

And per the USCIS’s own guidelines, only one of these requirements must be met for a job to qualify. Let’s see how your jobs stack up.

Attorney at a Private Law Firm

Well, this one is easy. In order to become a practicing attorney in the United States, you need to obtain a bachelor’s degree, a law degree from an accredited institution, AND pass a bar exam. Unless you’re Mike Ross from the TV show Suits, no law firm would give you a snowball’s chance in hell of practicing law without the above credentials. In fact, your job is so specialized that it meets all four of the specialty occupation criteria.

Paralegal

Paralegals are essential to the proper functioning of law offices, and we know that paralegals require highly specialized skills in research, writing, and organization. This would seem to comport with the fourth criterion listed above—”The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.”

Here’s where it gets a little trickier. The career trajectory of a paralegal is not nearly as established as that of an attorney. Although many career paralegals do obtain master’s degrees in paralegal studies, it is not the norm, nor is it required for the position. The most common path to becoming a paralegal involves a two-year associate’s degree, which would fall beneath the minimum threshold of a bachelor’s degree to qualify as a specialty occupation.

That said, we still think that a paralegal would qualify as a specialty occupation based on the high degree of complexity the job entails. Even with a two-year degree, if you can prove that you have the specialized training or work experience to supplement your other two years of college, you should qualify.

Adjudicator

Adjudicators play an important role in the legal profession, guiding alternative dispute resolution and helping to resolve conflicts between disputing parties before they go to court. They are also the perfect theoretical case study when it comes to the confusion surrounding the definition of a specialty occupation.

Adjudicators typically have a high degree of specialized knowledge in the field in which they mediate, and they also have special communication, problem-solving, analytical, and conflict-resolution skills. The nature of this knowledge is such that it would seem to satisfy the fourth criterion above. In fact, many adjudicators are lawyers or former judges, which speaks to the degree of complexity the job entails.

But.

It’s becoming increasingly common for non-lawyers to serve as adjudicators, which throws a wrench into its status as a specialty occupation. That’s because the USCIS has taken to including an unwritten fifth criterion—that the degree required must be specifically related to the occupation in question. If an adjudicator can be a non-lawyer with a background in, say, environmental sciences, then it may not qualify in spite of the high degree of complexity and skill the job entails.

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Conclusion

We know that the immigration process has become increasingly frustrating. The paperwork, the secrecy, and the apparent randomness of H-1B approvals and denials are all contributing to the vexation. Cases like Anubhav Shandilya’s are becoming more and more common, and the hypothetical case of the legal adjudicator will continue to be a major gray area in the application process.

But that’s no reason to start pulling out your hair. Recalibrating your expectations and understanding the new, de facto criteria for what qualifies as a specialty occupation are crucial to doing right by your clients and ensuring that their rights as voluntarily contracting parties are respected.

Park Evaluations has a network of consulting experts that can provide unbiased letters for H-1B visa applicants. We support a variety of fields, including—but not limited to—construction management and law. Contact Park Evaluations for a free assessment of your case today.