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    • 2018年02月15日(木)

    【H-1B application】

    Now that the H-1B application deadline for this year is fast approaching,
    this is a good time to review some of the main points that are needed for a strong H-1B case.

    Planning H-1B cases in advance carefully to avoid pitfalls is even more important now in this time of frequent RFE’s (Requests for Evidence) and even totally unreasonable H-1B denial decisions.
    In this comment, I will talk about one of the most important, but often neglected or misunderstood, features of an H-1B case, namely showing that the offered H-1B job qualifies as a “specialty occupation” under the H-1B regulations.

    Some employers may fall into the trap of thinking that if the employee who is being sponsored for H-1B has a bachelor or higher degree in a specialized area, then almost any job that the employer may offer to that person must also be qualified as an H-1B specialty occupation. But that is not what the H-1B rules say, Instead, the duties of the job in question, not the employee’s own education or experience, are what decide whether a particular job is a “specialty occupation” for H-1B purposes.

    If the immigration examiner thinks that the duties of the offered H-1B job are not specialized or complex enough so that they normally need a bachelor’s degree (or equivalent) in a field related to the job that is being offered, the H-1B case will not be approved, no matter how well educated the sponsored H-1B employee is himself or herself. This is an important point to keep in mind in planning an H-1B case.

    So how does a potential H-1B sponsor know which jobs the immigration office (USCIS) is likely to consider to be “specialty occupations” and which jobs will probably not be accepted? The H-1B regulations provide four standards for telling what will be considered to be a specialty occupation, and as long as the job meets any one of the four standards, it is supposed to be accepted as an H-1B specialty occupation. At least, that is what the regulations say.

    But that is not the way things always work out in practice. In the real world of H-1B, USCIS examiners often pay a great deal of attention to a US Deparment of Labor publication known as the Occupational Outlook Handbook (“OOH”) and little, or none at all, to anything else. I will discuss this further in my next article.

    In the meantime, anyone who has questions is welcome send me an Message from[Send Message]at the bottom
    or to call me at (212) 724-5643.

    Roger Algase
    Attorney at Law
    241 Central Park West
    Suite 19F
    New York NY 10024

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