Argumentative, hostile and distorted RFE's and denials of H-1B petitions are hardly new. They go back at least to the Clinton era, if not even earlier. But in the Trump-Miller-Cuccinelli era, H-1B RFE's and denials are reaching epidemic proportions, and the pretexts for withholding approval are becoming more far-fetched and divorced from reality than ever. This is hardly surprising, given that during the 2016 campaign, Trump first expressed support for H-1B but then suddenly changed his mind and called for its abolition as "cheap foreign labor".

Atter becoming president, Trump then stated that he wants to give priority to "Merit"-based immigration, but this has turned out to be little more than an excuse for a push to eliminate or drastically reduce family and diversity visas.. The attack on skilled and professional immigration has continued, with H-1B, which has long been under fire from anti-immigrant and white nationalist organizations, as a prime target.

In my own 25-plus years of experience with H-1B petitions, the main grounds of objection from USCIS and INS examiners that I have encountered is based on an argument that the offered H-1B position does not qualify as a "specialty occupation" within the meaning of the H-1B regulations. Usually, this argument is based on a distorted reading of the educational requirements for the position as described in the US Department of Labor's Occupational Outlook Handbook (OOH).

I have had many cases where, even though the OOH made clear that a bachelor;s degree in the specific specialty that the H-1B job involves, or a related field, is the normal requirement for the position in question, USCIS has still objected that the examples of "related" fields of study mentioned in the OOH were not really "related" to the position in question.

Recently, I have also received a couple of "kitchen sink" RFE's which have made clear that almost nothing
would convince the examiner that the petition merited H-1B approval. In one case, The RFE stated six different times that since the employee's own bachelor degree was allegedly only in a general major,and not in a specialty field, neither the position offered nor the sponsored employee were qualified for H-1B approval.

Fortunately by pointing out that the employee's bachelor's degree transcript (which the examiner apparently hadn't bothered to read) showed a major in the exact specialty as the offered position, this petition was ultimately approved.

In another case, the H-1B RFE not only misread the OOH along the lines I have described above, but went on make up a story out of whole cloth, without a shred of evidence to support this,conclusion, that the H-1B sponsored employee had allegedly violated the previous lawful non-immigrant status. There was never any such violation in reality.

But the message was clear. H-1B petitions were not welcome - at least with that particular examiner, who appeared to be typical of many others in the Trump-Miller Cuccinelli era.

As for O-1, there are two types, O-1A and O-1B, with very different standards. It is important to distinguish between them. For O-1A, one must show that one is at the top of field of endeavor concerned. For O-1B,it is enough to be distinguished or outstanding in one's field.

O-1A is for an individual who has shown extraordinary ability in business, science or athletics, and O-1B is for someone who has demonstrated extraordinary ability in the arts. In choosing whether to file for O-1A or O-1B, it is important to note that there are many occupations which are related to both business and the arts, such as fashion designer, for example.

For someone in such an occupation, it may often be more productive to file for O-1B rather than O-1A, in order to benefit from the less demanding requirements for showing extraordinary ability in the arts.

So what are the requirements for showing that one has achieved extraordinary ability in either the O-1A or O-1B category, and how does one go about proving that one has met the applicable standards?

This topic will be discussed in the forthcoming Part 2 of this comment.

Roger Algase
Attorney at Law