Posts Tagged ‘specialty occupation’

Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

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Posted in General, Scott Railton |

USCIS Narrows Meaning of a Specialty Occupation

Wednesday, May 23rd, 2018 by W. Scott Railton

USCIS is challenging employers on whether their positions fit the definition of a “specialty occupation.” It has become for the agency to issue “Requests for Additional Evidence” (RFEs) of employers, providing up to three months to respond. The Requests are overly broad, and a disguised tax on the company for filing the petition in the first place. It has been said that the agency anticipates denying as many as 25% of the applications submitted.  Applications were down this year, probably due to these bureaucratic challenges.  Many fear where this is going, with the best and the brightest opting for jobs elsewhere.

The requests can be several pages long.  In doing so, the agency is piling up the costs for businesses. This fits in with the Administration’s overall goal of making immigration harder. Or, as the Executive Order goes, “Buy American, Hire American.”

We are seeing businesses disrupted by this red tape, as new petitions and renewals for key personnel are challenged. The occupations most commonly challenged are managers and information technology professionals. Often, these professionals have many years of experience, and have seen past approvals from the agency.

In my experience, employers don’t typically want to sponsor H-1B professionals unless they have great cause to, due to the underlying costs. Employers don’t typically seek an attorney’s assistance to hire a professional, but that is standard for an H-1B.  There are just too many regulations and procedures to navigate. However, the U.S. has record unemployment and a shortage of qualified STEM professionals right now. So, the H-1B program has the potential to help businesses.

Here is the Request for Evidence template that many petitioners are receiving:

Specialty Occupation

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum, for entry into the occupation in the United States.
USCIS does not use the job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors that USCIS considers.

To qualify as a specialty occupation, the position must meet at least one of the following criteria:

1. Bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
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;
3. The employer normally requires a degree or its equivalent for the position; or
4. 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 bachelor’s or higher degree.

USCIS interprets the term degree in the above criteria to mean not just any degree, but a degree in a specific field of study that is directly related to the proffered position.

To show that the position offered to the beneficiary qualifies as a specialty occupation, you submitted:

• A certified Labor Condition Application (LCA)
• Other evidence described, relating to occupation title

The Occupational Outlook Handbook (“OOH”) (a publication of the U.S. Department of Labor) indicates that a [occupation title] is an occupation that does not require a bachelor’s level of education or higher or its equivalent in a specific specialty as a normal, minimum for entry into the occupation.

You have not shown that the position offered to the beneficiary is a specialty occupation. You may submit additional evidence to satisfy this requirement.

Evidence may include, but is not limited to:
• A detailed statement to:
o explain the beneficiary’s proposed duties and responsibilities;
o indicate the percentage of time devoted to each duty; and
o state the educational requirements for these duties.
• A copy of a line-and-block organizational chart showing your hierarchy and staffing levels. The organizational chart should:
o list all divisions in the organization;
o identify the proffered position in the chart;
o show the names and job titles for those persons, if any, whose work will come under the control of the proposed position; and
o indicate who will direct the beneficiary, by name and job title.
• Job postings or advertisements showing a degree requirement is common to the industry in parallel positions among similar organizations.
• Letters from an industry-related professional association indicating that they have made a bachelor’s degree or higher in a specific specialty a requirement for entry into the field.
• Copies of letter or affidavits from firms or individuals in the industry that attest that similar organizations routinely employ and recruit only degreed individuals in a specific specialty. Any letter or affidavit should be supported by the following:
o The writer’s qualifications as an expert;
o How the conclusions were reached; and
o The basis for the conclusions supported by copies or citations of any materials used.
• Copies of your present and past job postings or announcements for the proffered position showing that you require applicants to have a minimum of a bachelor’s or higher degree in a specific specialty or its equivalent.
• Documentary evidence of your past employment practices for the position, including:
o Copies of employment or pay records; and
o Copies of degrees or transcripts to verify the level of education of each individual and the field of study for which the degree was earned.
• An explanation of what differentiates your product and services from other employers in the same industry and why a bachelor’s level of education in a specific field of study is a prerequisite for entry into the proffered position. Be specific and provide documentation to support any explanation of complexity.
• Copies of documentary examples of work product created by current or prior employees in a similar position, such as:
o Reports;
o Presentations;
o Evaluation;
o Designs; or
o Blueprints.
• Additional information about your organization, such as:
o Press releases;
o Business plans;

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Posted in General, Scott Railton |

USCIS Receives 190k H-1B Applications for 85k Spots

Thursday, April 12th, 2018 by W. Scott Railton

Demand continues to outpace supply for H-1B petitions. For this year’s cap lottery, U.S. Citizenship and Immigration Services received 190,098 applications for 85,000 spots. This is actually less applications than in some recent years. Of course, this is the full allocation of H-1B slots for the 2019 Fiscal Year, received in the first five days.

For those reading who do not know, H-1Bs are the United States’ professional temporary visa for high skilled workers. These include certain information technology workers, high skilled health care professionals, engineers, accountants, and the like. While there are other temporary and permanent work authorization categories, the H-1B is the typical work authorization category that foreign students might pursue upon completion of studies in the United States. Over half of the students in STEM graduate programs in the U.S. are foreign students.

We speak to many employers who want to hire these students, but run into issues with the H-1B cap. Increasingly, it seems that students who don’t get picked either look for other employers or go to other countries. In some cases, they can wait another year, and apply again, but eventually time runs out. There are other options, like continuing education, or finding employment with certain cap-exempt employers. Fundamentally, though, the current system has many flaws, based on our observations from working with employers and prospective employees.

Good luck to all who applied! Here is the excerpted announcement from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap.

USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

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Posted in General, Scott Railton |

H-1Bs Are Now In Season

Tuesday, February 6th, 2018 by W. Scott Railton

H-1B season is officially upon us.

H-1Bs are the nonimmigrant work authorization for persons in specialty occupations. Specialty occupations are meant to be professional positions, but in the past year U.S. Citizenship & Immigration Services has gone to great lengths to narrow the class of professionals eligible for H-1Bs. In particular, the agency has made obtaining an H-1B much more challenging for information technology professionals.

The H-1B category requires that the employer pay the greater of the prevailing or actual wage for the position. Prevailing and actual wage calculations can sometimes be complicated matters, depending on the position. Employers are required to obtain a certified labor condition application from the Department of Labor prior to filing. This process can take a few weeks in some cases, if the employer is not already registered to file.

On April 1st, the annual cap will be open, and for five days employers will submit applications. We have every reason to expect that the agency will receive more than the maximum number of applications under the H-1B quotas. In total, there are about nearly 85,000 spots. In recent years, the agency has received more than 200,000 applications.

H-1Bs are often used as a bridge status for employers who have initially hired foreign students to work for them based on pre-approved optional practical training.

Filing fees vary depending on the employer, but there is a $460 I-129 form fee, a $500 fraud fee, and a $750 or $1500 training fee.

In light of the recent challenges employers have faced with this category, careful evaluation and planning is best. Job descriptions with particularized duties need to be provided, in order to withstand up to agency scrutiny, This can be challenging for some employers, where they know they have a professional position, but have never had to precisely articulate professional duties.

We can help.

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Posted in General, Scott Railton |