What is a Specialty Occupation, and How Can Your H-1B Petition Meet a Specialty Occupation RFE?

By: Matt Gerardi

You did everything right: filed your H-1B registration perfectly, got selected for a chance to submit an H-1B cap-subject petition, and submitted an airtight case with all the necessary forms and supporting documents. Now, all there is to do is wait for the approval to roll in.

But what’s that? USCIS has reviewed your petition materials, and instead of the approval you were expecting, you’ve been issued a request for evidence because the agency isn’t convinced the job at the center of your case is a “specialty occupation.” What now? What does that even mean? And how are you supposed to prove something so blatantly obvious to USCIS?

No need to worry. Park Evaluations is here to talk you through the deceptively simple subject of Specialty Occupation classification, and should the need arise, our expert position evaluation services can help you combat this all-too common challenge.

What is a “specialty occupation?”

At the heart of every H-1B petition is a position the petitioner, typically a U.S. business, is looking to fill. However, not just any old job is able to be filled by a temporary foreign worker living in the States as part of the H-1B program. U.S. immigration rules stipulate that H-1B nonimmigrant visas can only be provided to workers who will be filling a “specialty occupation” on a temporary basis. Unfortunately, it’s not enough for an employer to simply declare to immigration services that the role it is petitioning to fill is a “specialty occupation.” The position in question needs to meet an arcane definition found in the U.S. code, and it’s up to the petitioner to provide evidence establishing how, exactly, the offered role satisfies those guidelines.

Put simply, a “specialty occupation,” as USCIS sees it, is a job with responsibilities that are so specialized that 1) they require expert knowledge from a specific field of study and 2) only a person with, at least, a Bachelor’s degree in an academic field relating directly to the work at hand could perform them. Beyond satisfying that basic standard, the position needs to meet at least one of the following four criteria:

1. A U.S. Bachelor’s degree or higher in a specific academic specialty related to the responsibilities of the role, or its equivalent, is the minimum requirement for this particular position.
2. A U.S. Bachelor’s degree or higher in a specific academic specialty related to the responsibilities of the role, or its equivalent, is the minimum requirement for entry into parallel positions at similar organizations in the employer’s industry.
   1. Alternatively, this criterion can be satisfied by showing that this particular position is so complex or unique that it can only be performed by someone with a U.S. Bachelor’s degree or higher in a specific academic specialty related to the responsibilities of the role, or its equivalent.
3. The employer has an established practice of requiring a U.S. Bachelor’s degree or higher in a specific academic specialty related to the responsibilities of the role, or its equivalent, as the minimum requirement for this particular position.
4. The specific duties of the position in question are so specialized, complex, or unique that only a person with a U.S. Bachelor’s degree or higher in a specific academic specialty related to the responsibilities of the role, or its equivalent, could perform them successfully.

When USCIS challenges a position’s status as a “specialty occupation,” it typically does so by sending the petitioner a request for evidence (RFE) asking them to demonstrate how the position meets one of those four criteria using further documentation or the opinion of an outside organization or expert. The RFE will highlight each criterion and note why your petition did not meet it. USCIS challenges range in reasoning and detail, depending on the criterion in question and the documentation you provided in your initial petition. Similarly, the evidence USCIS asks you to provide is different for each of the four criteria. So, let’s look at each one separately and talk a bit about what exactly USCIS is looking for and how Park Evaluations can help you provide the evidence you need.

Criterion 1: Degree is Normally a Minimum Requirement

Here, USCIS is asking whether the petitioner’s proposed degree requirement is normal for positions within the same occupational domain as the offered role. The primary source of evidence for satisfying this criterion would be authoritative data or guidelines explaining the educational requirements of the SOC category you listed on your Labor Condition Application (LCA). Locating the page for this category on the Bureau of Labor Statistics’ Occupational Outlook Handbook can lead you to the same educational-requirement guidance that USCIS itself typically references when rendering decisions.

A Park expert position analysis can help here in a few ways. As part of our standard position analysis letter, an expert in the academic field to which your offered position belongs will examine your job description and attest to the fact that occupations of this nature typically require academic training at the undergraduate level. Park also offers an occupational classification add-on service that can help demonstrate which SOC category your position belongs to, making it that much easier to identify the minimum educational requirements that are “normal” for positions like yours.

Criterion 2 (Option 1): The Degree Requirement is Common to the Industry

To satisfy this requirement, the petitioner must provide evidence that, when hiring for roles with similar responsibilities, companies in its industry seek candidates with the same educational background as the one the petitioner has put forward with its degree requirement. Typical evidence petitioners submit to meet this criterion includes detailed job postings from similar employers that list the duties and requirements of positions of similar type and seniority, along with evidence explaining how each of these organizations is similar to the petitioner in industry and size. Petitioners can also seek documentation from professional associations representing the specific domain of the position in question that indicates the proposed degree requirement is typical for the industry at large.

While it is not a part of our standard position analysis letter, Park offers an “industry standard” add-on service that can easily help strengthen your case. If requested, the expert writing your position analysis letter will use their extensive experience in the field to explain that, yes, the degree requirement the petitioner has put forward for its H-1B position is common among its industry.

Criterion 2 (Option 2): The Position is Complex or Unique

Alternatively, this second criterion can be met be taking the opposite tactic. Here, instead of looking at the hiring practices of other organizations, the petitioner must provide evidence that the job duties belonging to the specific position being put forth are either so complex or so unique that they could only possibly be performed successfully by someone with, at least, a Bachelor’s degree in the specific academic field included in the petitioner’s education requirement.

This criterion is directly met every time you order a Park expert position evaluation. With a description of your H-1B position in hand, the expert writing your letter will examine the duties of the position and provide detailed analysis explaining what makes the position either complex or unique enough to require an undergraduate education in the specific specialty listed in your degree requirement.

Criterion 3: Employer Normally Requires Degree or its Equivalent

This standard is all about the petitioner’s established hiring practices. USCIS wants you to demonstrate to them that when hiring for this specific position in the past, the petitioner has normally held candidates to the same educational requirement that it’s proposing as part of this current H-1B petition. The petitioner must provide hard evidence such as past and present job postings for the position that include the same educational requirement, org charts that depict the educational requirements of various roles at the petitioner and include the position in question, or documentation verifying the identities and educational credentials of past hires for the specific role in question.

Because this criterion is so dependent on the petitioner’s practices, history, and internal documentation, it is not one that is directly addressed in a standard Park Evaluations expert position analysis. However, by opting to strengthen your case with the addition of our interview service, you can connect the petitioner’s managers and recruiters directly to our experts and provide an explanation of the past hiring practices for this position that they can incorporate into their evaluation.

Criterion 4: The Specific Duties are so Specialized and Complex

For this criterion, USCIS wants petitioners to demonstrate that the duties of its H-1B role require certain knowledge and skills that are commonly associated with the specific academic fields represented in the degree requirement for the position. The first step to meeting this standard is assembling a detailed outline of the position’s specific duties, taking care to make it clear to anyone reading the description that someone without the right academic training couldn’t possibly understand all the nuances, procedures, and/or technologies needed to succeed in this job.

Once you have that, a Park position analysis letter is the next piece of evidence that’ll help you satisfy this criterion. In every standard position analysis letter, our expert will examine the details of the job description you provide and, using a combination of their extensive experience in the job’s field and their own independent research, write an evaluation that discusses the specific duties of your H-1B position and breaks down the specialized knowledge needed to perform them. The expert will also discuss how completing an undergraduate education in the specific field mentioned in your petition’s degree requirements would provide a graduate with the training they need to accomplish the position’s tasks, using references to specific curricular standards and common learning outcomes.

Strengthening Your Petition with an Expert Letter

As you can see, even though anyone can tell immediately whether or not a job is complicated enough to require a specific educational background, convincing USCIS of this fact isn’t quite so simple. Thankfully, we at Park Evaluations have developed a successful strategy for meeting specialty occupation RFE challenges and assembled a roster of experts who are ready to help you defend positions in a wide range of fields. If you have a specialty occupation that needs evaluating, you can go to parkeval.com/free-assessment/ or email us at [email protected] to ask about a free preliminary review of your petition materials and find out what Park can do for you.