H1-B For Operations Specialist at Large Corporation

• Year: 2017
• Nationality: China
• Adjudicated By: USCIS
• Industry: Packaging manufacturing
• Company: Multimillion dollar corporation with hundreds of employees
• Position: Operations specialist
• Case: H-1B Petition
• Challenge:
  • USCIS challenging the Wage Level I of H-1B applicants
  • No universal standard to demonstrate what was typical pay for this position.
  • The USCIS challenge was self-contradictory and defied common sense.
  • No precedent to draw from to guide legal strategy.

BACKGROUND

One of the risks in immigration law is that it can be easily politicized. The inauguration of the Trump Administration saw new challenges to otherwise routine immigration cases in 2017. Mr. Zhang was hired by a major southern California operations specialist company after completing his Master’s degree at a prestigious southern California university. The company was looking to hire him in an H-1B, Specialty Occupation position, where he would work as an operations specialist. This position required the ability to analyze statistics and data and identify company weaknesses, and how to address them. In order to meet H-1B provisions, his position as an operations specialist must be determined as a “specialty occupation”, meaning that it generally requires a bachelor’s degree and involves complex job duties in order to qualify as an H-1B position. This engineering firm had been a client of our firm for many years. We had handled their H-1B petitions on dozens of occasions, rarely receiving RFE responses and never experiencing any denials.

The major challenge in this case was that the Trump administration had issued new forms of Requests for Evidence or RFE’s (a challenge to the petition seeking additional documentation), challenging the notion that a “specialty occupation” could also fit in as an entry level, wage level I position. The application required that H-1B’s fit into one of four Wage categories, with Wage Level I being reserved for entry level positions.

Essentially, the USCIS was suggesting that a complex professional position could not also be entry level, a position that could not possibly be true. Therefore, it was an unusual challenge because it was entirely unclear how USCIS wanted the case to be addressed. Further, it seemed that anything we argued might be interpreted by USCIS as a contradiction. If we argued that the case was indeed entry level, then USCIS might argue that the job is not complex. If we argued that the job is indeed complex, as H-1B stipulations require, then we risked the USCIS denying the case on the grounds that it was not an entry level position. The challenge was in arguing the right balance between the two, and it was not immediately clear what that balance was.

Further, following Trump Administration policy changes, many immigration firms were finding that routine H-1B cases were being denied. This situation presented a unique kind of challenge, as there was no precedent available to guide our RFE strategy. Our firm was nevertheless determined to beat the odds, and we handled this case carefully and comprehensively.

KEYS TO SUCCESS

The keys to success in this case was to make an appeal to common sense and demonstrate that an entry level position could also require complex job duties. More specifically, the RFE posed a challenge that Mr. Zhang’ position was really a specialty occupation. The Immigration Officer argued that Wage Level I positions only hold a basic understanding of the occupation and only perform routine tasks, and that therefore we had not demonstrated that it was a specialty occupation requiring a bachelor’s degree. The key to success was to demonstrate that there was no inherent conflict between being specialized, complex and requiring high education on the one hand, and holding an entry level position on the other. All positions require an entry level for new workers in the industry. In order to demonstrate this, we decided to try a variety of strategies and supporting documents. We performed research not just on our client-their history and standard practices-but also on the broader industry to demonstrate how this position could be both specialized and an entry level position with an entry-level salary.

The Tsang and Associates strategy was to make comprehensive, but common-sense arguments. In order to respond to the RFE, Tsang & Associates needed to establish what was typical of entry-level operations specialists in the field, establishing that they are inherently complex regardless of wage level. In any case, it was important to stay focused on the larger picture. In order to qualify for a specialty occupation under H-1B, the position held by the beneficiary must meet at least one of four criteria. The team at Tsang & Associates described in detail how Mr. Zhang’s position met all five of the criteria:

• A bachelor’s degree or higher or its equivalent is normally the minimum requirement for entry into Mr. Zhang’s operations specialist position;

In order to satisfy this requirement, Tsang & Associates submitted the Occupational Outlook Handbook 2017 edition, published by the US Department of Labor. It demonstrated that this labor category, mechanical operations specialists, holds bachelor’s degrees as being the typical entry-level education for this kind of position, and that a degree is almost always a prerequisite for the role. We were able to back this up with additional sources, such as from O*Net, which confirms that mechanical operations specialists require no less than bachelor’s degrees. While we satisfied this criterion in the original filing, we wanted to go further to conclusively demonstrate that this company typically required a bachelor’s degree for this position. We did this by conducting independent research on other corporations of similar sizes, that had also had recent openings for operations specialist positions. In these job openings we were able to demonstrate that other companies were paying the same position at roughly the same wage and performing the same complex duties. Therefore, there could be no conflict between paying Mr. Zhang this wage with this set of job responsibilities.

• The advanced degree requirement was common to the industry in parallel positions among similar organizations and that Mr. Zhang’s position was so complex as that it could only be completed by someone with a degree;

In this point we strengthened arguments that we had made in the original submission. Tsang & Associates was able to meet this requirement by also referring to the Occupational Outlook Handbook. Further, our firm did independent research to demonstrate that other operations specialist firms were putting out job postings for mechanical operations specialists that listed bachelor’s degrees as a requirement for the position.

We again referred to the Occupation Handbook which listed some of the skill sets that are required of mechanical operations specialists, such as creativity, listening skills, math skills, mechanical skills, and problem-solving skills. This is precisely the skill set that is developed in higher education. We again referred to the job postings from other companies that showed that degrees were common in the industry while also consistent with the wage level being offered.

• The employer normally requires a degree or its equivalent for the position;

This point too was addressed in the original submission, but we needed to show that Mr. Zhang qualified for H-1B without question. To show that our client satisfied this requirement, we were able to produce past job postings from our client showing that a bachelor’s degree was indeed the base requirement for that position. Additionally, we reinforced this position by producing and explaining the company organizational chart, showing where the position was in the company and how one with a bachelor’s degree could only fit in at that position considering the company structure. Further, we produced job opening flyers from the company that also demonstrated that the company. We did this by producing the company’s past job advertisements demonstrating that they had long required a bachelor’s degree and had long offered a salary that was consistent with what Mr. Zhang was being offered. We argued that it was not only consistent with H-1B requirements, but also consistent with what USCIS was requesting in the RFE.

• 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 bachelor or higher

We were able to show that Mr. Zhang fit this requirement by demonstrating that he indeed had extremely complex and specialized job duties. This was done by helping the company President draft a letter describing his duties, submitting documents detailing his projects, and submitting his work reports. Further, we went into very great detail describing his job duties and giving a percentage breakdown for each. This too was further elaborated on from arguments made in the original submission. This went much further than simply collecting documents from the client. This involved carefully helping our client draft new documents that explained in detail what his job entailed, and why it could be categorized as specialized.

Finally, we addressed the issue of Wage Level I itself. The Service argued that an entry level wage could not possibly be a specialty occupation because an entry level worker could only have a “basic understanding” of the job duties. We argued that this could not possibly be grounds to deny Mr. Zhang’s case because the requirement of a mere basic understanding of the occupation stems from the fact that it is an entry level position, but an entry level position suggests nothing with respect to the complexity or required education. There are entry level positions for many job positions that vary in terms of complexity and specialization. Entry level attorneys must still possess a juris doctor, entry level architects must still have extensive educational training as a prerequisite to entering the field. As Mr. Zhang has never before worked for this firm, it is to be expected that he would only have a “basic understanding” of what his position within the company is. Accordingly, we were able to demonstrate that holding an entry level wage designation and performing complex job duties, requiring a higher education, were not at all mutually exclusive as all jobs, regardless of complexity, require an entry level.

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. We were determined to do more than what was required in this case but we felt that it was worth it to help this engineer begin his career and overcome a murky visa challenge.

The case was ultimately approved on November 17, 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.