Legal Question in Immigration Law in Virginia

please suggest me what USCIS is looking and what i need to answer to them.

RFE New H-1B Application

U.S. Citizenship and Immigration Services (USCIS) has reviewed your petition and supporting evidence. You did not submit sufficient evidence to establish that the proposed duties of the proffered position are all of H-1B caliber work. Therefore, additional evidence is needed.

The Petitioner

Documentation submitted with your petition indicates that your company is an Information Technology Company. Your petition requests a change to H-1B status for the beneficiary, and that he may start work for you in the position of a Systems Administrator for a period beginning October 1. 2016 and ending August 30, 2019.

Specialty Occupation

USCIS routinely consults the U.S. Dept. of Labor's Occupational Outlook Handbook (OOH) for information regarding the duties and educational requirements of particular occupations. In reviewing the OOH regarding the position of Systems Administrator (Network and Computer Systems Administrators in the OOH) USCIS notes that the 00H does not indicate that a baccalaureate degree in a specific field of study is the minimum educational requirement to perform the duties of a Network and Computer Systems Administrator. The OOH notes that the position "may require only a postsecondary certificate." Additionally, in reviewing publicly available job posting websites, USCIS notes that there does not appear to be a consistent and exclusive requirement for a bachelor's degree or higher to obtain a Network and Computer Systems Administrator position.

While it appears that some employers may prefer candidates who have a bachelor's degree, it is not an absolute requirement to obtain such a position. Therefore, it is unclear if the proffered position is specialty occupation caliber work. Submit evidence that the proffered position involves a specialty occupation. This evidence must include at least one of the following:

A baccalaureate or higher degree, or its equivalent, in a specific field of study is normally the minimum requirement for entry into the particular position; or

The proffered position is so complex or unique that it can be performed only by an individual with a degree in a specific field of study; or

In your company or industry, a baccalaureate degree in a specific field of study is a standard minimum requirement for the job offered. Attestations to industry standards must be for similar positions among similarly situated companies; or

The nature of the specific duties for the proffered position are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific field of study.

Thanks for your time and suggestion .

Asked on 6/09/16, 5:24 am

2 Answers from Attorneys

Sean Hanover Hanover Law

You need to consult with an immigration attorney. I'm not sure who your employer used when filing the original documentation, but they completely failed to recognize the criteria (as mentioned in your RFE above) that USCIS uses to adjudicated H1B applications.

I would be happy to meet in consultation with you. You will need to bring the job description, and a thorough breakdown of all tasks to be accomplished. It is possible to recraft the position into something that USCIS would accept, but this is an up-hill battle. Generally, once the Agency has determined your position does not qualify for an H1B, they take a dim view of re-tooling the job description to make it fit H1B criteria. However, if we can show unique aspects of job, you can show them that this particular billet requires the skills and abilities generally found in H1B tasks.

Give us a call at 703-402-2723 or email at [email protected] and we would be happy to begin the process of assisting you in this matter.

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Answered on 6/09/16, 5:39 am
Rahul Manchanda, Esq. Manchanda Law Office PLLC

Please call us at (212) 968-8600. Kind regards, RDM

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Answered on 6/09/16, 11:44 pm

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