CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Software Distributor
BENEFICIARY: Nepali
LOCATION: Omaha, Nebraska
ISSUE: Specialty Occupation / Degree Issues
Our client is a nationwide stocking wholesaler of voice, data, and outside plant products in Nebraska. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his previous employer under an H-1B. The Petitioner-Employer filed an H-1B application (Change of employer) on behalf of our client on November 2. However, on December 1, 2011, the USCIS issued a 5-page Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation.”
The USCIS was skeptical and argued that the proffered “Web Developer” position in Petitioner’s business did not qualify as a “Specialty Occupation”. The main issue for the client’s H-1B application was whether the “Web/Software Developer” position for the Petitioner required a bachelor’s degree or its equivalent to make this position a “specialty occupation.”
After Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client consulted with our firm and eventually retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on their industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.
In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations. We provided evidence that the position of Web/Software Developer is a common position required by similarly sized software developer or distributor companies with similar annual incomes. We provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Web/Software developers. Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.
Our office filed a 9-page Response to RFE brief with 13 exhibits to the USCIS California Service Center on December 28, 2011. On January 11, 2011 our client’s H-1B petition was approved. Now our client can work for the petitioner on an H-1B status for the next 3 years.
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