Recent Approvals on Complex or Unusual H1Bs
Posted Nov 23, 2001

These are two real-life examples of recent, unusual H1B approvals that The Law Office of Sheela Murthy, P.C. is pleased to have obtained for the benefit of our clients. We hope they are beneficial to you, our MurthyBulletin and MurthyDotCom readers.

Life Style Counselor  The employer is a health club that provides fitness and wellness services to relatively healthy people and also operates a sophisticated, hospital-affiliated rehabilitation program for people with significant medical needs. A Life Style Counselor provides guidance regarding healthy habits and designs individual exercise and wellness programs tailored to the needs of the particular individual.

This was an unusual case as the position of Life Style Counselor may be unfamiliar to INS, as opposed to those professions more commonly acknowledged to be “specialty occupations.” Therefore it was necessary to describe the job duties and requirements clearly to the INS and present the arguments as to why the position qualified as a "specialty occupation." We were able to successfully demonstrate that the position of Life Style Counselor qualifies as a “Specialty Occupation” - namely that the job requires the services of an individual with at least a baccalaureate degree in a particular field of study.

As some of you may be aware, proving that a job is a “specialty occupation” when the INS questions it can be one of the most difficult requirements to satisfy. Those who do not have the Bachelor's Degree in the field in which they are working may be faced with requests for evidence (RFEs) or denials from the INS due to a certain position's not having satisfied the "specialty occupation" requirements.

We were successful not only in pointing out the importance of the position within the employer’s organization but also in showing how the beneficiary’s degree in Health Fitness Management was directly relevant to the job. In addition, we demonstrated that the employer hired other Lifestyle Counselors, all of whom had baccalaureate degrees in Health, Fitness, or similarly relevant fields of study.

Time Study Analyst  This case for a Time Study Analyst required a creative approach in order to present the best possible argument for petition approval to the INS.

The company had internally described the position as that of a “scheduler,” for a job in the construction industry. However, that title did not adequately reflect the specialized nature of the duties involved. We spent time researching an appropriate job title that was more descriptive of the actual position. In order to determine the most suitable title, we needed to examine and analyze the duties thoroughly so that we could present a strong and clear case to the INS. As we realize in immigration matters, one word sometimes can make or break a case and we were concerned that the employer's job title of “scheduler" may detract from the true nature of the job, giving an incorrect impression to the INS adjudicator.

We had been prepared for the possibility of an RFE from INS about the position, owing to its unusual nature. However, we are pleased to report that INS approved the petition outright, without any questions. Of course, it certainly helped that we had described the job clearly and in detail, showing that it was a sophisticated and specialized position that required a degree in a relevant field.

Although these examples are taken from real-life cases at our Office, no one can guarantee an approval for every person with the same or similar job title. Rather, each case is unique and is adjudicated by the INS on a case-by-case basis.

Please note that while we provide these instances as examples of unusual jobs, there are often complexities involved in cases thought to be simple H1B petitions. People sometimes realize the complexity of the process only when they receive a denial or an RFE. These examples demonstrate the unusual and complex nature inherent in each and every case, requiring a creative and pro-active approach on the part of the lawyer or law firm in order to obtain the approval. When initially submitting the petition to the INS, the key is to present the case in a way that clearly shows all the legal criteria are satisfied for an H1B petition. This minimizes the probability of obtaining an RFE.