H-1B RFE (Request for Evidence)

The RFE, or Request for Evidence, occurs after the initial H-1B petition is filed with USCIS.

The RFE occurs because the adjudicating USCIS officer needs additional evidence in order to render a decision on the H-1B petition.

One of the more common RFE’s is the Specialty Occupation RFE.

Here is the text for the Specialty Occupation RFE:

Specialty Occupation

You must establish that the beneficiary’s proffered position is a specialty occupation.

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and that 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.

Specialty Occupation Determination:

You must establish that the proffered position is a specialty occupation as defined above.

You indicate that the minimum entry requirements for the proffered position are a wide variety of disparate fields of study, such as business administration.

However, there must be a close correlation between the required “body of highly specialized knowledge” and the position.

A minimum entry requirement of a bachelor’s degree in disparate fields of study, would not meet the requirement that the position requires the theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, unless you establish how each field is directly related to the duties and responsibilities of the particular position (stated another way, how each field relates to the body of highly specialized knowledge required to perform the job).

The evidence you submitted is insufficient to establish how each field is directly related to the duties and responsibilities of the particular position, and therefore, that the position is a specialty occupation.

You indicate that one of the minimum entry requirements for the proffered position is a degree in business administration without further specialization or explanation.

You have not explained how this generalized field is a “body of highly specialized knowledge” that is directly related to the duties and responsibilities of the proffered position and/or how each of the fields of study under this generalized heading would relate to the duties and responsibilities of the proffered position.

Since there must be a close correlation between the required specialized studies and the position, the requirement of a degree with a generalized title, such as business administration or liberal arts, without further specification, does not establish eligibility. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm’r 1988).

As such, an educational requirement that may be satisfied by an otherwise undifferentiated bachelor’s degree in business administration is not sufficient to establish a requirement of a minimum of a bachelor’s degree in a specific specialty.

Further, you stated that the offered position’s educational requirements includes management, which is a non-specific term covering numerous specialties and vocations.

Accordingly, as the offered position’s requirements include generic degrees in management and business administration, without further specification, you have not established a close correlation to the duties of the offered position and those degrees.

Accordingly, on the basis of the position’s educational requirements alone, you have not established that the position is in a specialty occupation as defined above.

You may still provide evidence to meet this requirement. Evidence may include, but is not limited to:

A letter explaining how each field of study listed as a qualifying field for the proffered position is directly related to the duties and responsibilities of the position.
An expert opinion letter discussing how each field of study listed as a qualifying field for the proffered position is directly related to the duties and responsibilities of the position.

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

A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
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;
The employer normally requires a degree or its equivalent for the position; or
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 will discuss each of the qualifying criteria for specialty occupation below.

With your response, identify which of the specialty occupation qualifying criteria you believe has been satisfied.

If you believe the offered position satisfies multiple criteria, identify the evidence that you believe satisfies each criterion.

1. Degree is Normally Minimum Requirement

You may establish eligibility by showing that a bachelor’s degree or higher in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position.

You did not submit any evidence for this criterion. Thus, you have not established eligibility under this criterion.

Therefore, you have not established that a bachelor’s degree or higher in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position by your own educational requirements.

As such, you have not sufficiently established that a bachelor’s degree or higher in a specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular position.

You may still submit evidence to establish eligibility under this criterion. Evidence may include, but is not limited to:

Relevant documentation from an informative career resource, such as the Department of Labor’s Occupational Outlook Handbook (OOH), which describes the duties, work environment, education, training, skills, and other qualification requirements for the occupation. Include a statement describing how the particular position relates to the occupation listed in the career guide and how the information in the career guide demonstrates that a bachelor’s or higher degree in a specific specialty or its equivalent is normally the minimum requirement for the particular position.
Any evidence you believe will establish that a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.

2.a. Degree Common to the Industry

You may establish eligibility by showing that the degree requirement of a bachelor’s degree or higher in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations.

You did not submit any evidence for this criterion. Thus, you have not established eligibility under this criterion.

Accordingly, it is not apparent how a bachelor’s degree or higher in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations if it is not the requirement of your own position.

You may still submit evidence to establish eligibility under this criterion.

Evidence may include, but is not limited to:

Job postings or advertisements showing a degree requirement of a bachelor’s degree or higher in a specific specialty, or its equivalent, is common to the industry in parallel positions among similar organizations. Any job postings or advertisements should be supported by documentation of the following:
The date and source of the job posting or announcement;
A detailed description of the duties of the position and the educational, training, and experience requirements of the position;
The company or firm offering the position in these job postings or announcements is within your industry and is similar to your organization; and
The job postings or advertisements represent the industry standards for the position.
Letters from an industry-related professional association indicating that similar organizations routinely employ and recruit only individuals with a bachelor’s degree or higher in a specific specialty, or its equivalent for parallel positions.
Copies of letters or affidavits from firms or individuals in the industry attesting that similar organizations routinely employ and recruit only individuals with a bachelor’s degree or higher in a specific specialty, or its equivalent for parallel positions. Any letter or affidavit should be supported by documentation of the following:
The writer’s qualifications as an expert;
How the writer’s conclusions were reached; and
The basis for the writer’s conclusions, supported by copies or citations of any materials used.

2,b. Position So Complex or Unique

You may establish eligibility by showing that the particular position is so complex or unique that it can be performed only by an individual with a bachelor’s degree or higher in a specific specialty, or its equivalent.

The evidence you submitted is insufficient to establish eligibility under this criterion.

As evidence that the proffered position is so complex or unique that it can only be performed by an individual with a bachelor’s or higher degree in a specific specialty, or its equivalent you submitted a description of the job duties for the beneficiary’s proffered position.

However, the job duties, as described, do not appear to be of such complexity or uniqueness as to require the attainment of a bachelor’s degree or higher degree in a specific specialty, or its equivalent.

The evidence of record does not establish that the proffered position is significantly different from other positions within the occupational category of management analysts.

Accordingly, it is not apparent that the particular position is so complex or unique that it can be performed only by an individual with a bachelor’s degree or higher in a specific specialty, or its equivalent, based on your own educational requirements.

You may still submit evidence to establish eligibility under this criterion. Evidence may include, but is not limited to:

Letters from an industry-related professional association indicating that the position is so complex or unique that it can be performed only by an individual with a bachelor’s degree or higher in a specific specialty, or its equivalent.
Copies of letters or affidavits from firms or individuals in the industry attesting that the position is so complex or unique that it can be performed only by an individual with a bachelor’s degree or higher in a specific specialty, or its equivalent. Any letter or affidavit should be supported by documentation of the following:
The writer’s qualifications as an expert;
The writer’s knowledge of your business;
How the writer’s conclusions were reached; and
The basis for the writer’s conclusions, supported by copies or citations of any materials used.
Copies of trade publications or other articles within your industry which demonstrate and highlight the specific complex or unique functions of the position, which can only be performed only by an individual with a bachelor’s degree or higher in a specific specialty, or its equivalent.

3. Employer Normally Requires Degree or its Equivalent

You may establish eligibility by showing that you normally require a bachelor’s degree or higher in a specific specialty, or its equivalent, for the position.

You did not submit any evidence for this criterion. Thus, you have not established eligibility under this criterion.

Accordingly, you have not established that you normally require a bachelor’s degree or higher in a specific specialty, or its equivalent, based on your own educational requirements.

You may still submit evidence to establish eligibility under this criterion. Evidence may include, but is not limited to:

An organizational chart showing your hierarchy and staffing levels with corresponding educational and experience requirements for the positions. The educational requirements should include the field of study (e.g. computer science) in addition to the educational level (e.g. bachelor’s degree).
Copies of 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:
Documentation which lists the number of employees hired in the most recent two years for the position;
Copies of employment or pay records identifying past and present employees in this position;
Copies of degrees and/or transcripts to verify the level of education and field of study of each individual hired for this position in the last two years. Additionally, provide evidence to establish the duties that the individuals performed, such as official position descriptions, job offer letters, job postings, or performance reviews; and
An organizational chart or diagram, showing your organizational structure and staffing levels.
Documentation that lists the educational, experience, training, and skills requirements of the offered position, such as official position descriptions, job offer letters, or job postings.

4. Nature of Specific Duties So Specialized and Complex

You may establish eligibility by demonstrating that the nature of the specific duties of the offered position are so specialized and complex that the knowledge required to perform these duties is usually associated with the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent.

The evidence you submitted is insufficient to establish eligibility under this criterion.

The job duties, as described, do not appear to be of such specialization or complexity as to require at least the attainment of a bachelor’s degree in a specific specialty, or its equivalent.

You have not sufficiently detailed how the duties of the proffered position are more specialized and complex as compared to the duties normally associated with management analysts.

As discussed above, you have not established how each of the qualifying fields of study that you have listed for the proffered position is directly related to the duties and responsibilities of the position (stated another way, the body of highly specialized knowledge required to perform the job).

Accordingly, it is not apparent that the nature of the specific duties of the offered position are so specialized and complex that the knowledge required to perform these duties is usually associated with the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, based on your own educational requirements.

You may still submit evidence to establish eligibility under this criterion. Evidence may include, but is not limited to:

An explanation of the specific duties, as they relate to your products and services, and how the nature of those duties of the offered position are so specialized and complex, that they are usually associated with the attainment of a bachelor’s degree or higher in a specific field of study; provide an explanation of what differentiates your products and services from other employers in the same industry. Be specific and provide documentation to support any explanation of specialization and complexity.
Copies of letters or affidavits from firms, individuals, professional associations, or customers attesting that the nature of your products and services are so specialized and complex that a bachelor’s level of education, or higher, in a specific field of study is a prerequisite for entry into the offered position. Any letter or affidavit should be supported by documentation of the following:
The writer’s qualifications as an expert;
How the writer’s conclusions were reached; and
The basis for the writer’s conclusions, supported by copies or citations of any materials used.
Copies of trade publications or other articles about your company that highlights the nature of your products and services and demonstrates that the specific duties of the offered position are so specialized and complex that a bachelor’s level of education, or higher, in a specific field of study is a prerequisite for entry into the position.

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