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H1B approved for a Preschool Teacher

In February of 2016, Ms. X came to our firm, interested in applying for cap-subject H1B. Ms. X is employed as a preschool teacher. Ms. X received a Master's in Early Childhood Education from an American university.
After a thorough evaluation, we advised Ms. X that this would be a difficult case to win. This is because H1B visa is for “specialty occupations.” In brief, this means the job must require at least a U.S. Bachelor's degree in a specific field, and the worker must have a relevant degree or the equivalent combined education and/or experience. For example, an entry-level Civil Engineer must have a Bachelor degree in Civil Engineering. This is universal practice across the board. All employers who hire Civil Engineers have this educational requirement. 
The minimum educational requirements are described in the Occupational Outlook Handbook (OOH). OOH is the reference book USCIS relies on. So let’s look at what OOH says about preschool teachers:
“Typical entry-level education”: Associate’s degree
This doesn’t look good. Let’s continue to explore:
OOH further states: “In childcare centers, preschool teachers generally are required to have a least a high school diploma and a certification in early childhood education. However, employers may prefer to hire workers with at least some postsecondary education in early childhood education.
Preschool teachers in Head Start programs are required to have at least an associate’s degree. However, at least 50 percent of all preschool teachers in Head Start programs nationwide must have a bachelor’s degree in early childhood education or a related field. Those with a degree in a related field must have experience teaching preschool-age children. In public schools, preschool teachers are generally required to have at least a bachelor’s degree in early childhood education or a related field. Bachelor’s degree programs teach students about children’s development, strategies to teach young children, and how to observe and document children’s progress.”
This looks more promising. Ms. X is not employed by a public school. The State of California does not require preschool teachers to have bachelor degrees. However, the OOH leaves the door open that the degree requirement may vary depending on specific settings. 
Having advised client of the potential uphill battles, we filed Ms. X’s H1B on April 1st. Luckily, Ms. X’s H1B was picked by the lottery! As expected, we received a Request for Evidence (RFE) a month later, questioning the specialty occupation issue. The RFE letter stated:
“The Occupational Outlook Handbook (a publication of the United States Department of Labor), indicates that a Preschool Teacher is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no standard for how one prepares for a career as a Mandarin Immersion Teacher and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, the proffered position cannot be considered to have met this criterion.”
Let’s examine CFR§214.2(h)(4)(iii)(A), standards for specialty occupation position:
“To qualify as a specialty occupation, the position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
We couldn’t not argue (A)(1), because OOH indicates that a Preschool Teacher is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation.
Please see below a summary of what we prepared for Ms. X’s RFE:
(A)(3) employer’s practice
Documents submitted:
1) Evidence that both preschool teachers on staff for the same program have at minimum specialized bachelor degrees.
(A)(2) common in the industry
Documents submitted:
1) Expert Opinion Letter
2) printout of parallel positions requiring specialized bachelor degrees from major job search website
(A)(4): uniquely complex nature of job duties
Documents submitted:
1) A more expansive job description with each duty assigned a percentage, and accompanied by an analysis as to why a specialized bachelor degree is called for
2) Expert Opinion Letter
Two weeks after submitting a RFE response, we received the happy news that USCIS California Service Center approved Ms. X’s H1B petition on August 15, 2015. 
We specialize in handling complex H1B issues. To receive a free evaluation and see if you might be eligible for H1B, please email your inquiry to us. Attorney Wang will personally reply, typically within 24-48 hours.
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I just want to let you know that I received my green card today and my wife's green card is on the way. I am amazed of how fast they approved my petition. You did a wonderful and very professional job, I will be forever grateful with you. BTW I refer a friend of mine with you, his name is XYZ. He is a very nice guy. Thanks again for you great job.

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Tel: (888) 530-2286

DISCLAIMER: Information contained on this site is intended to educate the general public only and does not constitute legal advice. Readers are encouraged to seek advice and counsel from a law firm with experience in immigration and nationality law.