Expert Opinion Letters Disregarded with H1B Petition Filings

In recent months, the U.S. Citizenship and Immigration Services (USCIS) appears to have begun to take a far less favorable view of expert opinion letters submitted to evidence that a position indicated in an H1B petition qualifies as a “specialty occupation.” There has not been any formal policy change, but ever since the release of the infamous March 31, 2017 memo questioning whether the position of computer programmer qualifies as a specialty occupation, USCIS officers have routinely demonstrated a negative attitude toward expert opinion letters that opine as to the job duties being considered as a specialty occupation.

Background on Specialty Occupation

In order for an employer to obtain an approval for an H1B petition, the offered position must be a specialty occupation. A specialty occupation is defined as a position that requires (1) the theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of at least a bachelor’s degree in a specific specialty (or its equivalent) as a minimum entry into the occupation in the United States.

Purpose of an Expert Opinion Letter

In response to an RFE regarding whether an offered position qualifies as a specialty occupation, an employer may seek an opinion letter from an expert in the information technology field (usually a college professor) to evaluate the position and opine whether the duties of the position require the attainment of a U.S. bachelor’s degree in a specific field or in a related field. Generally, the expert will ask for a description of the offered position and information about the H1B employer’s business. The expert can then evaluate the position and offer an opinion regarding the educational requirements of the position.

Assuming the expert agrees that the position requires at least a bachelor’s degree in a specific or a related field, the employer then may submit the letter to the USCIS to evidence that the position is a specialty occupation. Historically, expert opinion letters have been considered favorably by the USCIS toward overcoming concerns about a position meeting the H1B specialty occupation requirement.

USCIS Attack on Expert Opinion Letters

In recent months, the USCIS appears largely to have stopped giving much weight to expert opinion letters in the H1B specialty occupation context. The USCIS routinely is dismissing expert opinion letters as reliable evidence, based on one or more of the following factors.

• The expert did not physically visit the beneficiary’s worksite and observe the beneficiary performing the duties of the position; therefore, the expert does not have sufficient knowledge of the job to provide an accurate evaluation.
• The expert’s opinion was limited to the information provided by the petitioner, and the job description did not provide sufficient information to establish the details of the position; therefore, the expert cannot adequately evaluate the position.
• The expert has not cited the research that was used as a basis for the conclusion that the proffered position is a specialty occupation.
• The expert’s opinion is not in line with the other information on the record; therefore, USCIS is giving less weight to the opinion.

Expert Opinion Letters Still May Be Helpful in Some Cases

In certain circumstances, an expert opinion may still be helpful. For example, if an employer wants to file an appeal to the Administrative Appeals Office (AAO) of the USCIS, or challenge a denial in federal court, it is useful to have a strong record to show that denial of the H1B petition was in error. And not every expert opinion letter is being dismissed by USCIS; this trend appears to be inconsistently applied. In addition, if the employer is able to provide a detailed description of the job and about the employer and its business model to the expert, this could bolster the expert’s analysis. Finally, it is important to incorporate an argument as to why the expert opinion letter should be accepted.

Conclusion

The recent attack on expert opinion letters highlights that, even without any legislative or regulatory changes, there are actions the USCIS can take to make the H1B process more challenging. Now, more than ever, it is critical for H1B employers to pay careful attention to changes in USCIS processes and trends, and ensure their petitions are well prepared and filed.

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