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H-1B Visa

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How to Win Difficult H-1B Specialty Occupations

Selecting the appropriate job title and duties is critical for obtaining an H-1B visa. Not all positions will be approved as specialty occupations. Understanding how USCIS analyzes positions and makes its decision is critical. The first thing to do is understand the regulations.

8 CFR 214.2 (h)(4)(iii)(A) states a nonimmigrant must meet one of the standards for specialty occupation:

1. A baccalaureate or higher degree or its equivalent is usually 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 typically requires a degree or its equivalent for the position; or

4. The natures of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

ITServe v. Cissna, No. 18-2350, DC District Court overturned USCIS denials based on a policy that more than one of the criteria was required, “USCIS tried to justify its interpretation by reading the “or” in the regulation as if it were “and.” (ITServe, at 37.)

To meet criteria 1, USCIS compares your position with a database of positions under the Occupational Outlook Handbook. Historically attorneys and Petitioners compared with another database called O*NET, but USCIS began denying cases using O*NET because it stated a number of the positions contained therein did not require a specific bachelor’s degree.

Recently we have seen some more jobs added to the OOH database. For example, Quality Assurances (QA) Analysts and Testers have been added to Software Developers since last year.

But there are still positions frequently used that are not included in the database. Here are some thoughts to help obtain H-1B visas for an unlisted position.

Let’s use software architect. A company desires to fill a position that researches and designs an artificial intelligence software application. The position will oversee the software development but will not perform the action. This position is analogous to a real estate architect who designs a home, and the builder and contractor execute the plan.

The position is not listed in the OOH. Even if you click the similar occupations to Software Developer, it does not contain this position. It does include Computer Network Architects who design and build data communication networks, including local area networks (LANs), wide area networks (WANs), and Intranets and Database Administration Architects who create or organize systems to store and secure data.

The key is to focus on the software developer description under the “What They Do” tab and explain its similarity. Still, where it differs, it differs by being more advanced, not less, and therefore requires the same knowledge contained in the educational requirements. The OOH’s 

“How to Become One,” tab states, “Software developers, quality assurance analysts, and testers typically need a bachelor’s degree in computer and information technology or a related field. 

The “What They Do” tab states:

“Software developers typically do the following:

  • Analyze users’ needs and then design and develop software to meet those needs;
  • Recommend software upgrades for customers’ existing programs and systems;
  • Design each piece of an application or system and plan how the pieces will work together;
  • Create a variety of models and diagrams showing programmers the software code needed for an application;
  • Ensure that a program continues to function normally through software maintenance and testing;
  • Document every aspect of an application or system as a reference for future maintenance and upgrades”.

The OOH continues: “Software developers, quality assurance analysts, and testers are involved in the entire process of creating a software program. Developers may begin by asking how the customer plans to use the software to identify the core functionality the user needs. Software developers also determine other requirements, such as security. They design the program and then work closely with programmers, who write computer code. However, some developers write code themselves instead of giving instructions to programmers.”

This definition is different than how a number defines their employees. In our instance, the software architect designs the software, and the developers build it. Programmers are not listed as a type of position or may have the same definition as developers.

The critical thing is to understand that the title is not essential. The job duties and requirements which are contained in the job description are. The key is to develop an accurate job description specific to tasks, software languages, or stack used, type, or types of the industry it serves. You can reference the project plan to indicate the company’s business models, history, and projections to show the work exists at the time of filing.

Using a legal brief instead of a cover letter to compare the position, the plan, and the OOH and informing them of instructive case law and current memos is a great way to help educate the adjudicator on how to apply the documents they are analyzing.