CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Indian Restaurant
BENEFICIARY: Nepali
LOCATION: Ohio
ISSUE: Specialty Occupation / Degree Issues
Our client is a large Indian restaurant in Ohio. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his employer under the OPT program. The Petitioner-Employer filed an H-1B application on behalf of our client on July 10, 2011 by themselves. However, the USCIS mailed a 5-page Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation.” The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.
The USCIS was skeptical and argued that the proffered “Operations Manager” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.
The main issue for the client’s H-1B application was whether the “Operations Manager” position for this Indian Restaurant Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.” Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on the restaurant industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.
In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations. We provided evidence that the position of Operations Manager is a common position required by similarly sized restaurants with similar annual incomes. Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Operations Managers. Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.
Our office filed a 9-page Response to RFE brief with 18 exhibits to the USCIS California Service Center on November 16, 2011. Our client’s H-1B application was approved 12 days later on November 28, 2011. Now our client can work for the Indian Restaurant employer on an H-1B status and he can work there for next three years, renewable for another 3.
FREE CONSULTATIONS
If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately.
For other H-1B success stories, please click here.
For other success stories, please click here.
Also feel free to contact our office anytime for free consultations.