Good news — this case cleared the first bar
The AAO withdrew the Director's denial, finding the Director incorrectly concluded the job duties were too general to qualify as a rehabilitation counselor position. The matter was remanded for a new first-line adjudication of the evidence, with guidance on evaluating the specialty occupation and degree requirement issues.
The petitioner sought to employ a habilitation counselor under the H-1B specialty occupation classification. The California Service Center Director denied the petition, finding the job duties were too general to qualify as a rehabilitation counselor role. On appeal, the AAO disagreed, finding that the petitioner's RFE response letter provided sufficient detail to establish the duties fit within the SOC rehabilitation counselor category. The AAO also identified a legal error in the Director's misapplication of 8 C.F.R. § 214.2(h)(4)(iii)(D)(5). However, the AAO remanded rather than approved, flagging unresolved questions about whether the petitioner's broad minimum degree requirements—spanning psychology, sociology, social work, education, and potentially 'human services'—constitute a single related specialty as required by statute.
What worked: The detailed supplemental letter submitted in response to the RFE, which explained the habilitation counselor's duties in the context of a multidisciplinary rehabilitation team, was found sufficient to categorize the role under the SOC rehabilitation counselor category and overcome the Director's generality objection.
What failed: The petitioner's minimum degree requirements were problematic: accepting degrees from a wide and seemingly disparate range of fields (including anthropology, criminal justice, nutrition, and divinity via the 'human services' catchall) risks failing to establish a single unified specialty. The petitioner's reliance on case law to justify a broad degree range was also rejected.
Takeaway: When structuring H-1B petitions, petitioners should ensure that any list of acceptable degree fields forms a closely related, coherent specialty directly tied to the job duties—and should avoid broad catchall categories like 'human services' that could encompass unrelated disciplines and undermine the specialty occupation argument.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating H-1B criteria.
● Evidence that moved the needle
- The detailed supplemental letter submitted in response to the RFE, which explained the habilitation counselor's duties in the context of a multidisciplinary rehabilitation team, was found sufficient to categorize the role under the SOC rehabilitation counselor category and overcome the Director's generality objection.
● Evidence that wasn't enough alone
- The petitioner's minimum degree requirements were problematic: accepting degrees from a wide and seemingly disparate range of fields (including anthropology, criminal justice, nutrition, and divinity via the 'human services' catchall) risks failing to establish a single unified specialty
- The petitioner's reliance on case law to justify a broad degree range was also rejected.
Letter from immigration specialist providing detailed narrative of habilitation counselor duties, including use of Devereux Positive Behavioral Interventions (D-PBIS) Lesson Plans, multidisciplinary team collaboration, individualized treatment plans, and skill acquisition across life domains.
LCA certified under SOC 21-1015.00 (Rehabilitation Counselors) was found consistent with the described duties after the supplemental letter clarified the role.
Job advertisements from purportedly parallel positions citing a wide variety of educational disciplines including a broad 'human services' catchall, which potentially undercut the specialty occupation argument.
List of 'approved human services degrees' including anthropology, criminal justice, nutrition, and divinity/religion/theology, suggesting the knowledge required could come from disparate and unrelated fields.
Petitioner's reliance on Residential Finance Corporation v. USCIS and related cases to argue that a wide variety of degrees can constitute a specialty was found unpersuasive.
The Director incorrectly found that the job duties were too general to qualify as rehabilitation counselor duties, despite a detailed RFE response letter providing sufficient specificity.
The Director incorrectly cited 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) as an equivalency rule for work experience substituting for education when evaluating specialty occupation status; that regulation applies only to evaluating individual beneficiary qualifications after specialty occupation is established.
Completed
I-129 filed
Habilitation counselor working with individuals with mental and physical disabilities to develop life skills and support community integration
Completed
California Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2024-07-26
AAO decision — Remanded
The AAO withdrew the Director's denial, finding the Director incorrectly concluded the job duties were too general to qualify as a rehabilitation counselor position. The matter was remanded for a new first-line adjudication of the evidence, with guidance on evaluating the specialty occupation and degree requirement issues.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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