In previous years, Utah employers and their foreign professional employees have enjoyed an easier review process for H-1B petitions. Recent trends, however, suggest employers should begin working with counsel earlier than usual and should prepare for enhanced scrutiny from USCIS.
Per federal regulations, each fiscal year USCIS makes available only 85,000 H-1B visas. Considering that H-1B applications always exceed the number available, the greatest challenge previously facing an employer was prevailing in the lottery style selection process. This year, however, in addition to the lottery process, there is an unprecedented shift in H-1B adjudication. Specifically, USCIS is challenging and scrutinizing whether an H-1B position is a specialty occupation.
A specialty occupation is a position typically requiring theoretical and practical application of a highly specialized body of knowledge obtained by a bachelor’s degree in a related field. USCIS will require employers to provide more evidence to demonstrate that the offered position is a specialty occupation, often more than what the law requires. Indeed, no occupation is immune from this heightened scrutiny, even in cases when the question of specialty occupation is indisputable, as with physicians, engineers, accountants, and statisticians.
Last year alone, there was a 45% increase in requests for evidence to employers from USCIS. With these requests USCIS asserted the following:
The proffered position is not a specialty occupation because the position does not require a bachelor’s degree in a specific field.
The proffered position is not a specialty occupation because the employer’s acceptable fields of study do not relate to each other.
The proffered position is not a specialty occupation because the use of the Level 1 wage means the position is entry level, and therefore, is not complex or specialized enough to warrant an H-1B.
The petition cannot be granted because Level 1 wage is not the appropriate wage given that the duties are too complex.
Employers looking to secure a FY2019 H-1B visa should start early and gather evidence to demonstrate the offered position is a specialty occupation. Employers should provide a well-articulated job description explaining each job duty in detail and providing specific examples. In addition, employers and foreign professional workers should review the worker’s transcripts and course descriptions, and connect the skills gained from the course(s) to specific duties listed in the job description.
Employers Council works closely with our members in preparing and submitting H-1B petitions. For more information about this immigration service or our general membership services, please contact Ryan D. Nelson at 801.364.8479 or at Rnelson@EmployersCouncil.org.
