AILA CA Conf. 2013 Practice Advisory.docx



How Special Is Special?? Challenges to H-1B Specialty Occupation ClassificationBy Fausta Albi and Lisa Baker Jones With AFM Practice Pointers to Avoid H-1B Requests For EvidenceBy Victoria DuongWhen the USCIS (or “Service”) issues a Request for Evidence challenging whether the H-1B position is indeed a “specialty occupation,” the RFE almost always contains language many practitioners are now intimately familiar with: Specialty Occupation means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a baccalaureate or higher degree or its equivalent, in a specific specialty, as a minimum, for entry into the occupation in the United States. Circular definition notwithstanding, we understand the challenges inherent in responding to these RFEs, especially for Market Research Analysts, Marketing Managers, Technical Sales Engineers, Computer Systems Analysts and Web Designers.TWO TRENDS IN RFE ISSUANCE FOR SPECIALTY OCCUPATIONSTREND #1: Mischaracterization of DOL Source Documents“A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position. The Occupational Outlook Handbook (a publication of the United States Department of Labor), indicates that marketing managers is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no standard for how one prepares for a career as a marketing manager and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred.” [Actual RFE language, no emphasis added.]Fact: Applicant is working for a cloud computing company with more than $14 million in venture capital funding as a Product Marketing Manager in a competitive marketplace renowned for Internet Technology. Applicant possesses a technical Bachelor’s degree from Columbia University and an MBA from Harvard Business School.The OOH for Advertising, Promotions and Marketing Managers states that a bachelor’s degree is required for most advertising, promotions and marketing management positions; it goes on to report that “[m]ost marketing managers have a bachelor’s degree. Courses in business law, management, economics, accounting, finance, mathematics, and statistics are advantageous.” Certainly an MBA program, particularly one as selective as that offered by Harvard Business School, would require courses that exceed this qualification. The USCIS accurately asserts that the OOH does not provide a specific degree field of education, which opens the door for the claim that it is not a specialty occupation. However, the OOH does not take into account the geographic location of the position, the specific nature of the industry and its hiring tendencies, and further combines three professions into one generic classification. In short, the USCIS should not elevate the OOH as the ultimate determination of specialty occupation. The data reported by DOL’s O*NET Online offers a separate classification for Marketing Managers, presenting a slightly more favorable analysis of the position. Under O*NET, Marketing Managers have an SVP of 7.0 to < 8.0, with a Job Zone of 4 (considerable preparation needed) , and a statement that “most of these occupations require a four year degree.” The petition and RFE response contain the following supporting documentation: (1) Statement from company’s VP of Product & Marketing outlining the specialized duties of the position, the company’s educational requirements for the position (at least a Bachelor’s degree in Business or related field with a preference for a technical Bachelor’s and graduate Business training), and his own educational background, which comports with the company’s requirements; (2) corporate organizational chart, showing reporting relationship; (3) Harvard Business School professor of business explanation of how required degree coursework prepares one for the position in question; (4) statement from industry recruiter, explaining that the position requirements are industry standard; (5) publically available internet job search website advertisements for like positions with like requirements ; and more.At time of publication, this case remains pending with USCIS.TREND #2: Single Versus Multiple Degree FieldsMany IT and financial services positions require an advanced degree in Business, following a technical undergraduate degree program. This tends to create problems when developing a filing strategy for a specialty occupation, even though this trend points toward a position being more specialized than a one having a simple bachelor’s requirement. As we know, in order for a position to be considered a specialty occupation, it must meet one of the following criteria:A baccalaureate or higher degree, or the equivalent, is normally the minimum requirement for a particular position;The degree requirement is normal in parallel positions among similar organizations or alternatively that the particular position is so complex that a degree is required;The employer normally requires a degree or the equivalent; orThe nature of the duties is so specialized or complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.See 8 CFR § 214.2(h)(4)(iii)(A). What this section does not contemplate is when multiple degree fields are (1) the normal minimum requirement for the position; (2) normal in parallel positions or for complex positions; (3) the employer’s normal requirement; or (4) required because the nature of the duties are so specialized or complex that multiple degrees or multiple degree fields are necessary to perform them.The position: MDM Solutions Architect. Master Data Management comprises a set of processes, governance, policies, standards and tools that consistently defines and manages the master data (i.e. non-transactional data entities or the products, accounts and parties for which the business transactions are completed) of an organization. It typically involves data management across multiple systems within an enterprise. The MDM Solutions Architect needs an IT background, with a deep understanding of business administration. The applicant: An H-1B transfer moving from MDM Solutions Architect position at Company A to MDM Solutions Architect at Company B. Applicant has an MBA from a United States university, with a business undergraduate major, which includes some technical coursework (but not enough for a standard educational equivalency). What is the proper Standard Occupational Classification for a hybrid position like this one? The “normal” Architect position could be classified as Computer Occupations, All Others under the sub category of Computer Systems Engineers/Architects (which presents specialty occupation issues of its own, since the occupation has no Education and Training Code or O*NET job zone), or under another Software Developer/IT position classification. However, when the applicant does not possess a degree that comports with the SOC, RFE warning bells start to sound. The way USCIS processes H-1B petitions, in connection with the increasing number of specialty occupation RFEs means that attorneys have to approach these hybrid cases carefully. Where there is no “normal” SOC for positions that require multiple degrees or degree fields, consider working backwards, and start with the applicant’s degree rather than selecting the SOC classification that best comports to the position. For enterprise-wide positions that have both a business and IT component, look to the less standard classifications, like Operations Research Analysts. Under the OOH for Operations Research Analysts “[m]any schools offer bachelor’s and advanced degree programs in operations research, management science, or a related field. Many operations research analysts have degrees in other technical fields, such as engineering, computer science, mathematics, and physics.” This is a Zone 5 occupation, with an SVP of 8 and an accompanying higher prevailing wage. Incidentally, the Operations Research Analyst position crosswalks under O*NET to Market Research Analysts and Marketing Specialists. PRACTICE POINTERSThe above RFE trends raise a number of concerns. The below practice pointers review in further detail the more problematic issues, and provide suggestions for addressing them.ISSUE: Undue emphasis on the term “specific”In the statutory definition of “specialty occupation”As noted above, the USCIS is focusing not only on whether the position requires at least a baccalaureate degree or its equivalent, but appears to be putting undue emphasis on the term “specific” in the statutory definition of “specialty occupation.” The statute defines specialty occupation as requiring the Theoretical and practical application of a body of highly specialized knowledge, and Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the U.S. Even in occupations for which it is clear at least a baccalaureate or its equivalent is a minimum requirement, the USCIS is turning its focus to whether the degree required is specific enough to qualify the position as a specialty occupation. In some cases, the USCIS seems to be interpreting “specific” as limiting the related degree to one field, which is unreasonably restrictive and disregards the individual employer’s needs.For example, in a recent denial of an H-1B in the occupational category of Postsecondary Education Administrator, which per the OOH clearly requires at least a baccalaureate degree, if not a graduate degree, the USCIS stated: There is no apparent standard for how one prepares for a career as an Associate Admissions Officer and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, the proffered position cannot be considered to have met this criterion [that a baccalaureate degree is normally the minimum requirement for the position]. It is noted that Petitioner’s cover letter states, ‘…and require that individual to have at a minimum, a bachelor’s degree in Management, Finance, or a related field.’ Therefore, the Petitioner does not require a specific specialty based on the letter.In the above case, the USCIS states that the requirements vary by employer; cites the limited and related fields which the employer (a graduate level business school) attested are acceptable for the position; then somehow concludes that the Petitioner does not require a degree in a specific specialty. The only explanation for this reasoning is that the adjudicator believes that a specific specialty is defined as only one possible degree. Interpreting “specific specialty” in INA §214(i) as restricting the related degree to one per job title does not reflect the reality of either higher education or the business world, thus frustrating the intent of the H-1B classification and yielding improper results. For example, an individual offered the position of Director of Research and Development for a biotechnology company would presumably not qualify for a “specialty occupation” with a biology degree, if the OOH indicated that individuals with degrees in chemistry or biostatistics would also be qualified. In short, the USCIS is imposing more restrictive requirements on this criterion than are found in the regulations, which is both ultra vires, and an untenable approach from a policy standpoint. Practice Pointer: Useful citations to counter the above erroneous interpretation of “specific specialty”: Tapis Int’l v. INS, 94 F Supp. 2d 172 (D. Mass 2000); and Residential Finance Corporation v. USCIS, 839 F.Supp.2d 985 (S.D. Ohio 2012).Although the District Court decisions are not legally binding precedent on the USCIS, they offer persuasive authority in that the USCIS has before tried and failed to provide a rational basis for its restrictive interpretation of “specific specialty.” In Residential Finance, the Court found that the USCIS’ interpretation of “specific specialty” was “too narrow” to be legally viable. In fact, the Court found that the USCIS’ interpretation of “specific specialty” was so restrictive that it amounted to an abuse of discretion and could not pass the rational basis test, the lowest level of scrutiny applied by federal courts and thus the easiest for the Service to satisfy. The Court stated “there is no apparent requirement that the specialized study need be in a single academic discipline as opposed to a specialized course of study in related business specialties.” Furthermore, the Court explicitly rejected the USCIS’ “implicit premise that the title of a field of study controls,” finding that such an interpretation “ignores the realities of the statutory language involved and the obvious intent behind them,” and that the “knowledge and not the title of the degree is what is important.” In Tapis Int’l, the Court rejected the USCIS’ interpretation of specific specialty because it would preclude any position from satisfying the "specialty occupation" requirements where a specific degree is not available in that field. Practice Pointer: Be aware that the AAO in recent decisions has upheld a more restrictive interpretation of specific specialty. See, e.g. Matter of ____, WAC 1000850309 (AAO, April 7, 2011; Matter of _____, WAC 0814853409 (AAO, January 5, 2010). The common thread in these cases is that if a bachelor’s degree in more than one undergraduate major may satisfy the requirements for the proffered position, the position does not qualify as sufficiently specialized for H-1B classification. Practice Pointer: The USCIS is also likely to refer to Matter of Michael Hertz in support of a restrictive interpretation of “specific” specialty. Matter of Michael Hertz held that an individual with a “degree of generalized title, such as business administration or liberal arts, without further specification, does not establish eligibility.” This statement reflects a concern that a position calling for a general degree, absent further specification, is not sufficiently specialized in a particular industry to qualify for a specialty occupation. Counsel may distinguish this case by pointing out that the regulations at 8 CFR §214.2(h)(4(ii) in fact list “business specialties” as a field which requires the theoretical and practical application of a body of highly specialized knowledge. Also, depending on the facts of the case, counsel may be able to clearly show why, for example, a Masters of Business Administration is required for an Admissions Officer for a Business School. Practice Pointer: Present the USCIS with its own guidance regarding the deference due to the petitioner and its ability to define its own business needs: “When determining whether a particular job qualifies as a specialty occupation, USCIS does not use a title, by itself. The specific duties of the offered position combined with the nature of the petitioning entity’s business operations are factors that USCIS considers.” Issue: Undue focus on the OOH as the primary source regarding a degree requirementAs with the trends noted above, while the specialty occupation RFEs do provide the petitioner with the alternative regulatory criteria for determining whether a position qualifies as a specialty occupation, they tend to treat the DOL’s Occupational Outlook Handbook as the primary, if not definitive, source for determining whether a degree is commonly required for the position in the industry. This is despite the fact that the OOH, while perhaps a good starting point for the inquiry, cannot possibly consider an individual employer’s specific needs and should certainly not supersede them. Further, the RFEs sometimes mischaracterize the information in the OOH.For example, in a recent RFE for a Market Research Analyst, the USCIS stated “While the 2012-2013 edition of the OOH reports that a baccalaureate degree is the minimum educational requirement for many market and survey research jobs, it does not indicate that the degrees held by such workers must be in a specific specialty that is directly related to market research, as would be required for the occupational category to be recognized as a specialty occupation.” The RFE goes on to state that because ‘The requirements appear to vary by employer as to what course of study might be appropriate or preferred…the proffered position cannot be considered to have met this criterion.”Practice Pointer: A useful citation in this situation is Unico American Corp., which held that USCIS should give deference to the employer’s view, should consider fully the employer’s evidence and should not rely simply on “standardized government classification systems, [such as the Occupational Outlook Handbook].” Practice Pointer: If the position is one which USCIS has been questioning recently as a specialty occupation, decide whether to “frontload” the initial filing. This is always a strategic/ judgment call, as counsel must weigh the possibility that frontloading may lead the Service to believe that the petitioner is concerned that the position may not qualify as a specialty occupation. On the other hand, frontloading may head off the RFE, saving time, costs, and the client’s frustration in the process. If the decision is made to frontload the initial filing, if primary source documents indicate a degree is required, proactively include a printout of the relevant OOH section in the initial H-1B filing, highlighting the educational requirements. Support that with a DOL Office of Foreign Labor Certification O*Net listing with zone classification and perhaps even the Specific Vocational Preparation (SVP) classification for the position. Other optional supporting documents can be taken from the list which is generally provided in the RFE: a detailed job description, including a chart outlining specific duties, the percentage of time spent on each duty, and how the beneficiary’s specific education is needed to fulfill those duties; internal job postings for prior similar positions with the same petitioner; job postings from similar companies requiring a degree in a few related fields; a letter from an expert in the field attesting to the minimum requirements necessary to enter the profession; examples of work product required for the position, demonstrating the complexity; etc.Practice Pointer: Watch for USCIS mischaracterization of source documents, and directly counter them. For example:The OOH, 2012-2013 Edition for the occupational classification of Market Research Analysts states: “Market research analysts typically need a bachelor’s degree in market research or a related field.” The OOH goes on to define what is considered a related field for this position. Further, in the context of Market Research Analyst positions, fields such as Statistics or Computer Science are not considered disparate fields. If the position is data processing driven, education in Statistics and Computer Science are directly related to the position. Whereas business development driven positions would favor an educational background in Business, Marketing or Market Research; all directly related disciplines. The fact that this occupation can focus on a particular aspect of Market Research Analysis depending on the position does not disqualify the position from being a specialty occupation requiring at least a bachelor’s degree in a related field.The OOH also goes on to confirm that “Many market research analyst jobs require a master’s degree. Several schools offer graduate programs in marketing research, but many analysts complete degrees in other fields, such as statistics, marketing, or a Master of Business Administration (MBA).” In this case, while the OOH uses the term “other fields” the OOH lists three fields which are directly-related to market research analysis. Practice Pointer: Provide very detailed job duties to show not only why a degree is required, but why a degree in a few specific related fields is required. For example: “As can be seen in the detailed job duties provided, the position of Marketing Specialist/Coordinator involves planning, analyzing and leading the marketing and business development activities of the Petitioner’s business. Therefore, having a degree related to the field of Marketing and Business Administration is a realistic minimum requirement for the position of Marketing Specialist/Coordinator.” Practice Pointer: Highlight that other sources have already identified the position as a specialty occupation. For example, the “List of Professional/Specialty Occupations” that appeared in the September/October 2005 issue of Immigration Law Today names occupations that have been recognized as professional and/or specialty as defined under INA § 101(a)(32) and INA § 101(a)(15)(H)(i)(b). According to this list, the positions of “Marketing Analyst,” “Marketing Manager (Assistant),” and “Marketing Director” have been deemed to qualify as specialty occupations. Practice Pointer: Point the USCIS to its own regulations, which clearly envision business specialties as included in the realm of specialty occupations:. . . an occupation which 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.ISSUE: USCIS Misstatement of the alternative regulatory criteriaFor a specialty occupationThe RFE template for H-1B specialty occupation issues does then go on to discuss the alternative regulatory criteria by which a petitioner can prove that a position requires at least a bachelor’s degree or its equivalent. However, note that the USCIS misstates the regulation at 8 CFR §214.2(h)(4)(iii)(A)(4) to add the term “specific” to “specialty,” which is in fact absent from the plain language of the regulation. The regulation defines the standards for a specialty occupation position as fulfilling one of four alternative criteria:A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; [or][This is the category for which the USCIS often cites the OOH. If the OOH does not provide sufficient evidence that a degree is required, the inquiry does not end there, as there are four other alternative ways to demonstrate a position qualifies as a specialty occupation.](2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; [or](3) The employer normally requires a degree or equivalent for the position; [or](4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree. [The RFE template adds the words “in a specific specialty” here.]Practice Pointer: The specialty occupation RFEs add the words “in a specific specialty” to the fourth alternative above. It bears noting that these regulatory criteria address only whether a degree is required; there is no mention of a requirement of a degree in one or even several “specific” fields. As the regulations were promulgated by the USCIS itself, it follows that if the Service initially wished to emphasize the “specific” degree requirement and/or to interpret it as a sole degree requirement, it would have clearly so stated in its regulations. As the word “specific” is not included in the regulation, it serves to over-emphasize the otherwise brief mention of degree in a “specific” field which appears only in the statutory definition. ISSUE: Positions often challenged as specialty occupationsSmall company H-1B petitionerPetitions filed by a small or start-up company routinely face more scrutiny for a variety of reasons, including concerns about whether the employer truly has a need for a position requiring highly specialized knowledge. As such, they have a higher RFE and denial rate. Practice Pointer: Argue that it is precisely because the company is small and/or in start-up stage that the Petitioner necessitates an employee with advanced knowledge to assist with its growth. Practice Pointer: It is also worth mentioning that both the Obama Administration and USCIS have made a public commitment to support entrepreneurs and investors, as they represent a critical force in the recovery and growth of the U.S. economy.Practice Pointer: Cite Fred 26 Importers, which held that whether a position is professional is unrelated to the size of the company, the salary, or prior company history of maintaining a position. Computer-Related OccupationsPractice Pointer: Counsel may need to educate the reader about the nature and complexity of the position, especially for emerging technical positions. For example, see (the now ancient, from a technological standpoint) December 22, 2000 Legacy INS Memo which discusses the fact that certain occupations may be in transition from nonprofessional to professional status. At the time, computer programmers and programmer analaysts were examples of occupations in transition. Interestingly, the Memo notes that “in light of the fact that in 1998, 60% of the universe of programmers had a bachelor’s degree or higher, we will generally consider the position of programmer to qualify as a specialty occupation.” This can be a useful citation in cases for which the USCIS appears to be applying an adjudication standard of “beyond a reasonable doubt” rather than a “preponderance of the evidence.” Sales and Business Development PositionsSales positions are always problematic. Even a very high level position, such as the Vice President of Sales or Business Development, is likely to be challenged because most basic sales positions do not necessarily require a degree to perform the job. If the position is for a sales engineer or technical sales, emphasizing the technical knowledge required helps show the level of complexity of the position. If possible, avoid the word “sales” in the job title. While it is the job duties, rather than the job title, which are supposed to control the classification, it is human nature for the title to influence the impression of the position; for this reason, “sales” is best avoided.RFE Triggers and Tips from the Adjudicator’s Field Manual (AFM) By Victoria DuongThe Adjudicator’s Field Manual (AFM), binding on all USCIS examiners, guides its examiners in the adjudication of H-1B petitions. Its “Adjudicative Issues” section at AFM 31.3(g) can serve as a list of possible RFE trigger factors. RFE Trigger #1: The totality of the circumstances -- beneficiary’s education and work experience, the nature of the petitioner’s business, industry practice, and salary (both offered to the beneficiary and typical for the industry) -- do not demonstrate the position is a specialty occupation. See AFM at 31.3(g)(1): Deciding If the Proposed Employment Is a Specialty Occupation Although the definition of specialty occupation is included in the statute itself and the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation, approval or denial often comes down to a judgment call by the adjudicating officer. There are numerous references available (such as the DOL’s Occupational Outlook Handbook) to describe specific vocational preparation for various occupations. However, it is important to note that occupations are rapidly evolving and job titles themselves are often meaningless. In order to correctly adjudicate a case, it is necessary to consider all the facts surrounding the petition: the beneficiary’s education and work experience, the nature of the petitioner’s business, industry practice, and salary (both offered to the beneficiary and typical for the industry). It is important not to be so influenced by a single factor, such as the job title or salary, that other indicators are overlooked. If significant doubts exist regarding the beneficiary’s work experience, the adjudicating officer may request an overseas investigation or refer the case to the appropriate local ICE office for interview, field examination, or local investigation.RFE Trigger #2(a): Lack of specific evidence showing that the quality of experience is high enough to qualify as “professional” when trying to establish eligibility through equivalency of experience See AFM at 31.3(g)(2): Equivalency of Experience and Education One of the most common situations an adjudicator will encounter is an H-1B petition filed for an alien in specialty occupation where the alien lacks a U.S. bachelor’s degree. Adjudicators should be thoroughly familiar with 8 CFR 214.2(h)(4)(iii)(D) which describes the kind and amount of experience which can be used to establish the equivalence of a degree. Three years of professional experience may be used to substitute for each year of college-level training. The most critical aspect of this type of adjudication is deciding whether the quality of experience is at high enough level to qualify as ‘professional.’ Experience is generally documented through letters from past employers and may be so lacking in specificity as to make the qualitative determination difficult or impossible. The regulations for deciding equivalency are very specific and must be closely followed.RFE Trigger #2(b): Beneficiary’s age at completion of studies and the duration of the course of study do not compare with the average age of graduates or courses of studies at U.S. institutions offering similar programs. See AFM at 31.3(g)(2): Equivalency of Experience and Education Foreign educational credentials, licenses and other forms of documentation are easier to evaluate than experience. The petitioner may establish from an authoritative source or from transcripts, certificates, or other such school records that the alien has college-level education. College-level training may have been acquired at a college or university or other academic institution which grants a degree, diploma, or certificate, such as a technical college. It may be useful to compare the beneficiary’s age at completion and the duration of the course of study, with the average age of graduates of United States institutions offering similar programs as a factor in determining equivalency of education. RFE Trigger #2(c): No (a) training certificates, (b) summary or outline of the curriculum, or (c) start and end dates of all training in the required field when seeking to demonstrate eligibility through specialized training. See AFM at 31.3(g)(2): Equivalency of Experience and Education Specialized training may have been acquired through an apprenticeship program, employee-sponsored training courses, vocational training schools, or other commercial training facilities. The starting and ending dates of all training in the field must be shown. Training certificates and an outline or summary of the curriculum should be submitted. RFE Trigger #2(d): Misplaced reliance on membership in a professional association as a way of demonstrating eligibility through equivalency. See AFM at 31.3(g)(2): Equivalency of Experience and Education Membership in a professional association, per se, is insufficient evidence of equivalency. An association which grants certification or registration in the profession should have an accrediting body which has standards for the profession, and which issues an official document to applicants verifying that they have been awarded professional credentials in the profession. The standards of the organization should be reviewed to ensure that bachelor’s degree or higher, or its equivalent, is required for membership.RFE Trigger #3(a): Lack of evidence showing that the college official has the required authority and expertise and is formally involved with the college or university's official program for granting credit based on training and/ or experience when seeking to demonstrate H-1B eligibility through work or training equivalency. See AFM at 31.3(g)(3): Unsolicited Evaluations An evaluation by an official who has authority to grant college-level credit at an accredited college or university with training and/or work experience in the profession can also be used to support an equivalency claim. USCIS does not require the alien to be enrolled in a program for college credit at the university in order to accept the evaluation of such an expert. However, the official must be formally involved with the college or university's official program for granting credit based on training and/ or experience to have the required authority and expertise to make such evaluations. The evaluation may be done in the official's name as an individual, or as an authorized representative of the college or university. Any such evaluation should be given considerable weight in determining eligibility. RFE Trigger #3(b): Lack of translation of college-level equivalency examinations or special credit programs into college credits by an authoritative source when seeking to demonstrate H-1B eligibility through completion of the required degree. See AFM at 31.3(g)(3): Unsolicited Evaluations Results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI) must be translated into college credits by an authoritative source in the particular program or by an authorized official from an accredited college or university, such as the registrar, in order for the results to be applied towards the degree requirement.RFE Trigger #3(c): Misplaced reliance on an outside organization to provide an opinion on the equivalency of experience to education.See AFM at 31.3(g)(3): Unsolicited Evaluations There are a number of outside organizations which evaluate educational credentials to determine degree equivalency. Some organizations may also provide an opinion on the equivalency of experience to education. It is important that the adjudicator distinguish between these two types of evaluations. The latter type of evaluation carries little weight. Although USCIS does not specifically recognize or accredit any sources of evaluations, foreign educational degree evaluations can be of assistance if they are thorough, well documented and specific in reaching an equivalency determination.RFE Trigger #4: A need for skills that is not normally associated with the business. See AFM at 31.3(g)(4): Assessing the Needs of the Petitioner for Services of the Beneficiary This issue is occasionally present in H-1B petitions filed by small businesses for aliens with professional skills not normally associated with persons employed in such a business (e.g., a petition for an accountant filed by an auto repair business or restaurant). Often, such petitions are filed by a relative or family friend as an accommodation to the beneficiary. Either the beneficiary will be employed in a lesser capacity or he or she will seek other employment immediately upon arrival. The burden of proof falls on the petitioner to demonstrate the need for such an employee. Unless you are satisfied that a legitimate need exists, such a petition may be denied because the petitioner has failed to demonstrate that the beneficiary will be employed in a qualifying specialty occupation.RFE Trigger #5 (a): Financial condition of the petitioner calls into question whether the petitioner really intends to employ the foreign worker as claimed. See AFM at 31.3(g)(5): Determining the Petitioner’s Ability to Pay the Required Wage This issue, like the preceding one, is most commonly associated with small enterprises which do not necessarily have the assets required to pay the salary guaranteed in the petition. Such a petition may be an accommodation to a relative or friend who will seek other employment or there may be an agreement to work for lower wages. It is not necessary that complete financial data be submitted with every H-1B petition. However, if in the discretion of the adjudicating officer the financial condition of the petitioner is so questionable as to call into question whether the petitioner really intends to employ the alien as claimed, evidence of financial ability may be requested. This is because the financial standing of the petitioner, when taken in consideration with other factors, may be indication that the petition is an accommodation and not a valid job offer.RFE Trigger #5 (b): Relationship between the petitioner and beneficiary calls into question whether the petitioner really intends to employ the foreign worker as claimed and pay the required wage rate. See AFM at 31.3(g)(5): Determining the Petitioner’s Ability to Pay the Required Wage Other factors that may be examined include, but are not limited to, the nature of the petitioner's business, the relationship between the beneficiary and the owners/officers of the petitioning entity, and the petitioner's immigration history.RFE Trigger #6: Lack of evidence showing that the beneficiary will be able to engage in the occupation immediately upon entry. See AFM at 31.3(g)(7): Ability to Engage in the Occupation Immediately Upon Entry This issue often arises in occupations where a state license is required. If the beneficiary will require training or must take a licensing examination before commencing employment in a specialty occupation, the petition may not be approved. See Matter of St. Joseph's Hospital, 14 I&N Dec. 202 (Reg. Comm. 1972). ................
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