February 13, 2014

H1-B is a “specialty occupation” work visa, which means it is only available for a position that can be considered a “specialty occupation” as defined by the statute and regulations. It is especially difficult to obtain H-1B visas for marketing positions, as the United States Citizenship and Immigration Services (USCIS) primarily considers them administrative and thus not requiring degrees in specific specialties.

Based on my experience of overcoming a challenging Request for Evidence (RFE) process for a Brand Manager position, here are the key points for employers and employees to consider when pursuing H-1B visas for marketing professionals:

General tips

  • Make sure your immigration lawyer has substantial experience with filing H1-B applications for marketing positions. It’s even better if he or she has a track record of success stories involving RFEs for complex marketing cases. It will prove, that the person knows the nature of marketing role as well as related USCIS`s requirements and concerns;
  • Think twice before choosing a name for the position. Positions that have been approved in the past are Market Research Analyst, Assistant Marketing Manager, Marketing Analyst, and Marketing Director. So even if the employee’s actual title makes a lot of sense to the employer, do not try to be unique here. It’s better to use position titles the USCIS is already familiar with;
  • If you apply for a marketing position you are already at high risk of receiving a RFE. So do your research: go through RFEs that have been received by other marketing applicants in the past and try to avoid any grey areas in your application;
  • Read and proofread everything. There is no lawyer who knows all the details about your and your employer’s background. Even if your attorney had experience with marketing positions in the past, he or she still doesn’t completely understand what you and your employer do. It is your responsibility to make sure that all possible details are taken into account and are used to your advantage.

Meeting Criteria to Qualify for the Position

According to USCIS, in order to perform services in a specialty occupation, the employee should have a degree required by the specialty occupation, or a related concentration.

  • If the employee’s degree is general, i.e. Business Administration, the best way to go is to re-evaluate the diploma with an independent evaluation agency. Analyze all the marketing and related courses you took during your studies. Include any related post-graduate programs, certificates or courses and consult with the evaluation agency on what can be done. Ideally, you will obtain an academic equivalency evaluation stating that you have attained the equivalent of a Bachelor (Master) of Business Administration (or any other general specialty) Degree with a concentration in Marketing.
  • You can also obtain a letter from your Marketing professor confirming that your education, training and expertise in marketing qualify you for this specialized position.

Establishing that the Position is a Specialty Occupation

As previously mentioned, the most important requirement for obtaining an H-1B visa is establishing that the position is a specialty occupation. USCIS relies on the Occupational Outlook Handbook (OOH) to perform its analysis as to whether a particular position qualifies as a specialty occupation. My RFE states that, “Marketing Manager is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum entry into the occupation.” That’s why marketing professionals should provide additional evidence to prove that the position does require special knowledge and expertise.

Here is the list of documents that worked in my case

  1. A letter from the employer, explaining complex nature of the position, supported by industry publications. It explained:
    • Why business is complex and technical (we focused on specific nature of free-to-play business model, implications of global marketing, advanced technologies in online business and marketing challenges related to all above)
    • How marketing has advanced, and how today organizations are placing higher demands on their marketing departments
    • How with the rise of social digital marketing a profusion of new specialist roles are emerging
  2. A letter from the company’s major competitor confirming that according to company’s recruitment policy for hiring professional marketing employees, they require at least Bachelor’s Degree for marketing positions.
  3. A letter from the PR agency that has been working with the employer establishing, that companies like employer’s routinely hire marketing managers who have at least a Bachelor’s degree and this is the industry standard.
  4. A letter from the Recruiting Agency that had been hiring talent for the employer confirming that they instructed the company to recruit for marketing professionals who have at a minimum a relevant Bachelor’s degree, such as one with a concentration in Marketing.
  5. Job postings from competitors in the industry for similar jobs that show that a Bachelor’s degree in marketing, business administrations, economics or a related field is required for the marketing positions at similar companies. These employers should be similar in size (by number of employees) and annual income to the company petitioning USCIS.
  6. A comprehensive job description with the percentages of time the employee will spend on each job duty distributed as following (with further details):
    • Executes lead generation and develops brand strategy and marketing objectives to strengthen Petitioner’s brand—40%
    • Implements brand strategy and oversees brand usage throughout the company—25%
    • Performs detailed market research and analysis—25%
    • Constructs reports for senior management; financial reports and event coordination—10%
  7. Copies of Bachelor’s/Master’s degree certificates from marketing staff working for the employer.
  8. Employer’s classified ads, which require at least a Bachelor’s Degree in related field.
  9. Multiple documents showcasing the complex nature of employee’s marketing responsibilities: annual marketing plans and timelines, annual projections, PR web analytics report, and event recap reports, brand guidelines etc.

If you have already received an RFE, don’t give up. Work on developing a thorough and timely response. The RFE I received was 11 pages long, and several lawyers told me that my chances for approval were about 50%. However, due to my very strong response we turned it around and I was able to rightfully secure my H1-B visa.

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