(The following is a talk given by Alan Lee, Esq., at the Queens Borough Public Library in Flushing, Queens, on March 10, 2014, which will be presented here in 4 parts. Today’s topics are the definition of a specialized occupation, factors that U.S.C.I.S. considers in adjudicating H-1B petitions, including qualifications of both petitioner and beneficiary and problematical cases. The remaining parts will deal with the cap issue and the lottery, filing process and strategies of filing, common misperceptions of premium processing benefits, the cap gap, and problems after the H-1B petition is approved and before October 1st.)

Good evening. Thank you for taking the time to come out here for this talk on H-1B petitions for which the season for submission begins on April 1st. Thank you also to Cathy Chen and Selina Sharmin of the Queens Library for inviting us today.

H-1B’s is the topic tonight – and so we will not be discussing subjects like Social Security, the Affordable Health Care Act, the New York winter, or climate change; and if you are looking for a reference librarian, that’s outside the door! Assisting me today on translation is Rose Wen and on PowerPoint Arthur Lee.

1 Definition Of Specialized Occupation

Now, what is an H-1B? An H-1B is a specialty occupation visa, and a specialty occupation is defined under the immigration laws as one that requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. That’s quite a mouthful, but it basically comes down to being able to match the professional degree to the professional field of endeavor.

2 Factors that U.S.C.I.S. Considers in Adjudicating H-1B Petitions

A The Alien’s Qualifications

Is the beneficiary always required to possess a four-year matching degree? If the four-year degree is not available, U.S.C.I.S. may consider three years of professional training and/or work experience to cover each year of missing education. The proof of training and/or work experience should demonstrate that it included the theoretical and practical application of specialized knowledge required by the occupation. Items useful to present among others may be membership in an association or society in the specialty occupation or license or registration to practice a specialty occupation in the foreign country. Such situations require an educational evaluation by a recognized evaluation agency to establish a base point for education and an assessment of the covering work experience by a U.S.C.I.S. examiner. An evaluation covering both education and experience may be helpful in the determination of the beneficiary’s qualifications, but such evaluations in the past have met more positive response where the evaluators had authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training or work experience.

For example, if we have a person who has three years of college in finance and three years of specialized experience in the finance field afterwards, that might make out a four year degree in the field to Immigration. By the same token, a person with a four-year finance degree who is being offered a job in an unrelated field like engineering may require 6 years of specialized experience in the field as an immigration examiner may only give credit for the first 2 core years of the college education. In the past, we have managed these types of situations which were not clearly eligible but in which the people had experience in addition to their schooling.

B The Employer’s Qualifications

What about the employer's qualifications? U.S.C.I.S. wants assurance that the specialized degree is actually required to perform the duties of the position. It therefore requests evidence of the bona fide nature of the employer in the form of documentation describing the business such as business plans, reports, presentations, promotional materials, newspaper articles, website texts, news copies etc. It may also request a detailed description of the position to include the approximate percentages of time for each duty that the applicant will perform. Other evidence useful to show to U.S.C.I.S. are advertisements especially from the employer and other employers similarly situated indicating that the degree was indeed required for the positions as well as information concerning the employer’s past hiring practices in terms of the educational qualifications of the people hired for same or similar positions. I should note that a big company can more easily establish the bona fide need for a degreed individual than a small one as U.S.C.I.S. is many times suspicious that an applicant will be performing a host of non-qualifying duties that would be handled by support staff in a bigger company. Regardless of the size, attention to being able to provide much of the materials I just mentioned goes a long way in determining whether the case is approved.

Another situation that we see is the person that comes and says, "Mr. Lee, I'd like to incorporate my own company and for that company to sponsor me for the H-1." The problem here is usually not only company size but also that the H-1B beneficiary is supposed to be an employee and not an owner. Note, however, that there is an exception under the present Administration’s emphasis on encouraging entrepreneurship under which an H-1B can be given to a promising entrepreneur as long as he or she is able to be controlled by the Board of Directors. Here the factors that are most relevant appear to be the credibility of the corporate book, solidity of the business plan, any evidence of outside investor interest, and if possible any indication of media interest.

C Cases That Can Give You Problemsor more work

So why are there many H-1B denials? There are H-1B applications that are recognized as having no problems - accountant in an accounting firm or an architect in an architectural firm. But change the fact situation to an accountant who is doing market analysis or an architect wanting to be a programmer. Or change it again to another type of company - for example, an accountant in a 6 person import – export company or an architect in a small construction company. The latter 2 types of cases are the ones that would likely require more work to be approved. Other types of cases raise alternate concerns. For example, for computer consulting or other positions in which the applicant will be working off-site, U.S.C.I.S. has also imposed the requirement that the company be able to demonstrate that it controls the work of the professionals that it sends out to the end client companies including who makes the hiring/firing and promotion decisions; the amount of contact with the petitioner’s supervisor; whether the petitioner claims the beneficiary for tax purposes or provides other benefits; or whether the petitioner provides any tools or applications for the work. And for market research analysts, Immigration has been all over the map and denied cases - in some instances on the basis that the beneficiaries did not have masters degrees which were required to function as a market research analyst, and in other instances that market research analyst positions did not require baccalaureate degrees and were not clearly professional in nature.

This article © 2014 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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