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 an IT Consulting Company which is based in New Jersey. The beneficiary is from India who obtained a Bachelor’s degree in a related field.
The beneficiary had a previous H-1B so the Petitioner employer needed to file a change of employer petition for the beneficiary. Prior to retaining our firm, the Petitioner-Employer filed an H-1B application on behalf of our client with help of their previous immigration counsel on October 21, 2013.
However, the USCIS mailed a 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” on March 10, 2014. 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 “Systems Analyst” 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 “Systems Analyst” position for this IT Consulting Company 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 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 Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company. Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst. 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 detailed Response to RFE brief with 16 exhibits to the USCIS Vermont Service Center on May 8, 2014. Eventually, our client’s H-1B application was approved on May 20, 2014.