Bloggings On Immigration Law
by Roger Algase
Greg Siskind has done everyone a great service by "outing" an immigration examiner who issued an even more idiotic RFE in an H-1B case than usual (ID, December 6). Jacob Sapochnik's article about an RFE from an H-1B examiner who apparently had no intention of approving the case under any circumstances at all (ID, December 5), is also very helpful.
My office also also handles a high percentage of H-1B cases. Over the past decade, we have been fortunate in receiving comparatively few RFE's and very few denials. I cannot recall receiving a single denial in at least the past 10 years involving the issue of whether the offered position qualifies as a specialty occupation.
One reason for this is that I am conservative about which kinds of H-1B cases to accept in the first place. If the job duties are not clearly related to those of a well recognized specialty occupation, regardless of the title (which examiners do not usually pay as much attention to, in my experience), I may suggest that the client consider a different kind of visa (such as J-1, which may be often underused or overlooked) or a labor certification instead, if appropriate. I do not regard H-1B filings as a good opportunity to blaze new trails or open up broad new vistas in terms of which jobs qualify as specialty occupations, though this may admittedly be necessary at times.
Second, even when the H-1B employee is being offered a traditionally accepted specialty job, such as accountant, systems engineer or interior designer, I almost always provide a detailed job description. At least I know that if I get an RFE, there is one piece of boilerplate, namely alleged lack of a job description, that the examiner will be forced to leave out. In reality, I have found that including a detailed job description (with that ultimate in absurdity, a "percentage of time" breakdown for each duty) greatly reduces the chances of getting an RFE.
Third, I almost never try to rely on a showing that a particular kind of bachelor degree or equivalent is normal for the offered position in the industry in question. I believe that this is playing the game on the adversary's playing field and by the adversary's rules. As I believe Mr. Sapochnik's excellent article shows, an examiner who shows every indication of having made up his or her mind not to approve a case from the start will always find an excuse to say that given job listings, advertisements or letters from competitors are not representative of the industry.
Fourth, like Mr. Sapochnik, I rely as little as possible on the OOH, unless it is crystal clear in concluding that a particular position requires a specialty bachelor degree. I notice that there has been a tendency for the OOH to "dumb down" the requirements for certain types of jobs. Many jobs which used to be decribed as requiring a bachelor degree in past OOH editions are now being listed as needing a "bachelor or associates" degree. Many others now just require a "college degree". What does that mean?
Instead, I try to show, if at all possible, that employer has a history of hiring only people with the appropriate bachelor degree or equivalent for the offered position or similar ones. I also try to emphasize the complexity of the position, something I have often found to be quite effective. Some examiners seem to feel that if they can understand what a particular job involves, it cannot be a specialty occupation. They may be right. But at least I try to make sure that I understand what the job involves. That may be the most important element of all in a successful H-1B case.
Most of the RFE's I have received in recent years have involved, not the issue of whether the job is a specialty occupation, but whether the employer "has sufficient work available at an H-1B level" to justify hiring someone in the given specialty occupation. To me, this is just a fancy way of saying: "Sorry, no small companies need apply for H-1B". I have never been able to find out which statute or regulation contains this provision. I will have more to say about this in a future blogging.
In summary, even though many of my comments up to now have dealt with issues of prejudice and discrimination in relation to immigration policy, I have never found this in H-1B decisions. To the contrary, I have encountered equal opportunity incompetence.
Roger Algase, Esq., is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.