A few short months ago, our office assisted in overcoming an extensive and seemingly difficult H-1B Request for Evidence. The company is a distinguished provider of clinical research services. With over 18 years of clinical research experience and cutting-edge technology solutions, the company was made up of talented IT and data science professionals with the knowledge of and focus on the life science industry, particularly pharmaceuticals. The company is relied on by leading pharmaceutical, biotech and medical device companies for their outsourced projects and personnel requirements. By way of its petition, the Employer sought a qualified Senior Statistician with extensive statistical analysis knowledge and a background in pharma and/or healthcare in order to provide useful statistical expertise for complex design and interpretation of clinical programs, regulatory submissions and commercialization for one of its coveted clients.
To qualify for an H-1B visa, the beneficiary must be offered a position by a U.S. employer that is considered a specialty occupation. This means that the job must either require (1) a Bachelor’s degree or higher or its equivalent, (2) a degree requirement which is common for the type of position in that industry, or the job is so complex or unique as to require at least a bachelor’s degree, (3) that the employer normally requires a degree or its equivalent for the position, or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform those duties is associated with the attainment of a bachelor’s degree, or higher. Jobs in fields such as engineering, computer science, math, and business often qualify as specialty occupations. Individuals must be able to show that their educational background matches the occupational field that they will be working in.
An H-1B worker must also be paid a prevailing wage. A prevailing wage is determined based on the requirements of the position and the geographic location of work (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels.
Although the Employer had previously supplied a respectable amount of evidence, CIS nonetheless issued an RFE extensively questioning the specialty nature of the position and employer-employee relationship since the Employee was slated to work off-site with one of the Employer’s client. This is when the Employer came to us for help and we gladly accepted the challenge.
After a thorough review of the extensive RFE, we created a detailed checklist that was molded to the petitioning employer’s organization. Our list indicated the best type of evidence the Employer should provide in order to build a strong response.
We then worked closely with the petitioning employer in order to fully understand the position and worked these aspects into a supplemental employer letter. The employer supplied additional materials including work product to show the specialized nature of the position and that the duties associated with a Senior Statistician within their organization could only be performed by someone with a college degree. The employer also supplied prior job postings for Senior Statisticians within the company which clearly establish the normal employment practice of requesting a bachelor’s degree or higher. We also did our own independent research to show that individuals working as Statisticians – especially Senior Statisticians – normally have at minimum a bachelor’s degree and that many employers preferred a master’s degree in Statistics. We compared the Employer’s proffered position with several job postings from other similar organizations. We argued that these job postings prove that Statisticians working in pharmaceutical and/or biotechnological firms such as the Petitioner had at minimum a bachelor’s degree. In a side-by-side comparison of the job duties and minimum requirements, it was clear that these organizations were similar and that they all required the same thing.
Next, we addressed CIS’ concern about the employer-employee relationship. Because the Employee would be stationed at one of the Petitioning Employer’s client’s sites, CIS requested additional evidence to ensure that the Petitioner would indeed have the ability to control the Employee. We respectfully requested that CIS redirect its attention to the previously-submitted Offer of Employment and Client’s Letter of Support. We also pointed to the detailed job description. The evidence provided clearly established that the Petitioning Employer – and only the Petitioning Employer – would have the exclusive right to control and supervise the duties and performance of the Employee.
Once all documentation had been gathered and implemented into our brief, the RFE response was submitted. Unfortunately, because Premium Processing had been suspended, there was no telling how long it would take to receive an update. Fortunately, the petition was ultimately approved! The employee (who had been in the U.S. in F-1 OPT status) could now change her status to H-1B and officially start employment – employment for which she was highly qualified.
We are very pleased to be able to help yet another individual obtain H-1B status. It is important to note that every case is different and this is only one example of the hundreds of types of H-1B cases that we have encountered and conquered here at W&O’. This is why it is highly recommended to have a qualified immigration attorney that understands the intricacies of immigration law. Here at W & O, our team of experienced attorneys have dealt with numerous H-1Bs and would be delighted to assist you with yours. We have offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho. We offer a free in-person consultation.
Nancy Vo – Attorney
Nancy Vo is currently an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier, she was an editor on Whittier Law Review, had an article published in 2015, and earned a CALI award in Legal Writing. Ms. Vo earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego.
Richard Wilner – Founding Partner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.