H-1B

SUCCESSFUL H-1B RFE CASE

·         Year: 2014

·         Nationality: Spain

·         Adjudicated By: USICS

·         Industry: Engineering

·         Company: Multimillion dollar corporation with hundreds of employees

·         Position: Engineer

·         Case: H-1B Petition

·         Challenge:

    • The position being filled was a corporate strategy analyst, which did not involve any management or supervision of any lower-level employees.

    • The position of corporate strategy analyst did not show up in the Occupational Outlook Handbook, 2013-2014 Edition, a handbook that USCIS uses to determine if the proposed position meets the requirements of an H-1B visa.

    • The Beneficiary had a professional background that lacked any clear specialization or specific area of expertise, as he held merely a bachelor’s in business administration

Strong legal advice and an impeccable command of the law can be the difference between H-1B approval and denial.  However, even with the strongest, most experienced, and most dedicated team, challenges can arise because of weaknesses in the case. A longtime client who was a multimillion dollar engineering company in southern California came to our firm with a new beneficiary, a Spanish national who had only a standard business background. Certainly, Mr. Martinez had no engineering background. The engineering firm waned to hire him as a “corporate strategy analyst”.  To make matters more difficult, this category did not appear in the Occupational Outlook Handbook for the relevant year. This handbook is used by USCIS to determine whether someone qualifies for an H-1B position. Furthermore, the beneficiary was not managing any other personnel, despite having a business management background. Still, we were confidant that we could win the case

KEYS TO SUCCESS

First, with respect to his lack of managerial experience, we highlighted the fact that the requirements of H-1B do not specifically require any managerial or executive duties. The requirements are that an H-1B position should demonstrate the necessity of “specialized knowledge”, as demonstrated by the requirement of a higher education degree. In order to demonstrate this fact, we broke down what is job entailed, which specifically involved the following details:

  • Develops and manages annual operational plans

  • Assists the President/CEO in developing corporate strategic plans

  • Supports the Board of Directors conducting financial analysis

  • Assists Mergers & Acquisition team with search and evaluation

  • Participates in the review of corporate agreements, such as NDAs, LTAs, joint ventures, licensing, purchase agreements and acquisitions

  • Participates in special business planning projects

  • Supports Board activities and projects as required

 

 

Additionally, while the job designation did not appear I the Occupational Outlook Handbook, we were able to demonstrate that the position is included in a supplementary database called O*Net, which confirmed the job tasks listed above, as well as the stipulation that a college education is a requirement for this kind of position. Further, while the job title of corporate strategy analyst did not appear in the Occupational Outlook Handbook, USCIS cares more for the description of the job functions and responsibilities more than the job title itself. With this in mind we demonstrated that the position that Mr. Martinez was being assigned to was very similar to that of Management Analyst, which is listed in the Occupational Outlook Handbook. In the handbook Management Analyst is described as requiring at least a bachelor’s degree, and often as much as an MBA, as was the case for Mr. Martinez’ new job. It also described job duties that were almost identical to those of Mr. Martinez. We were therefore able to use this as evidence that his job both required an advanced university degree, as well as to corroborate the extensive and complicated nature

“When the RFE came in, I thought my case was done for.  Thankfully, Joseph and Chen- Cho were able to find why USCIS was in the wrong and helped me win my case”- Mr. Martinez

OUTCOME

Despite the fact that this was a completely new kind of RFE, our firm was able to secure a favorable response and we won the H-1B case. The case was ultimately approved on December 3, 2017. Our client was overwhelmingly happy about the outcome, as well as thrilled and relieved on account of the fact that he expected the case to be denied, much like similar cases.

Moreover, most of the cases that had received this form of RFE were denied. Months later they were overturned by the Administrative Appeals Office on much the same grounds that our case had argued for this client. With hard work and common sense, we were able to avoid a denial in this case.

 

*Name has been changed to protect client identity.