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Recently, a number of PTís who have been approved by the USCIS under the EB2 visa classification based upon having a Bachelorís degree plus 5 years of progressive experience have been refused an immigrant visa by the Manila post. We have now learned that the IV Chief in Manila has questions about whether a Bachelorís degree plus 5 years of progressive experience qualifies someone for an EB2 visa and has returned some or possibly all similar files to the USCIS for either revocation or re-affirmation. This issue was in doubt for many years with some Service Centers approving EB2 cases under this standard while others refused however, in April of 2000, as a result of a class action lawsuit designated Chintakuntla vs. USCIS, the government signed a joint stipulation acknowledging that a Bachelorís degree followed by 5 years of progressive experience did meet the EB2 standards as being equivalent to an advanced degree and as part of the order signed by a Federal Judge, agreed to re-adjudicate all cases wrongly denied and to follow these guidelines going forward. The USCIS also updated its Adjudicatorís Field Manual to reflect this position. Why this issue has raised its head again in Manila some 14 years after it has been settled is not known. Whether the actions of the Manila post is in violation of the Judgeís order and whether anyone will charge the Post with contempt of court is also not known but, legal action is being considered by several stakeholders. This was previously posted on HLG's Healthcare Immigration Blog by Mike Hammond http://hammondlawgroup.com/healthcareblog/
This is the second installment of my comments concerning recent attempts by USCIS adjudicators to distort the OOH and disregard a leading federal court decision in order to delay or deny approval of H-1B petitions for the long recognized specialty occupation of Market Research Analyst.
This issue is not only important because Market Research Analyst is a popular H-1B position, since no company, large or small, can survive for long without market research.
It is also important because if USCIS officials can get away with twisting the OOH into the opposite of what it really means and ignoring federal court decisions which the agency might not like in order to deny meritorious H-1B cases, neither US employers nor skilled foreign specialty workers will be able to rely on the H-1B program, as a comment to my April 21 post points out.
The H-1B visa program already resembles Aeneas, the hero of Virgil's great epic, whom the poet describes as multum ille et terris iactatus et alto ("he was severely buffeted on land and sea") because H-1B has already been decimated by the senseless, artificial, Congressionally imposed visa shortage.
But if USCIS continues to add to the problems caused by Congressional inaction by making up its own arbitrary and capricious interpretations of the OOH and refusing to follow relevant federal court decisions, the H-1B program will be in danger of becoming even less usable by the US employers and skilled foreign professionals whom it was originally intended by Congress to benefit.
In my April 21 post, I first quoted language from the OOH showing that the position of Market Research Analyst meets the classic, and most fundamental, test of an H-1B specialty occupation, because it normally needs a bachelor degree "in market research or a related field."
However, as that post also mentioned, USCIS adjudicators have argued, in effect, that the words "a related field" should be read narrowly to mean only one field of study, or at the most, perhaps two or three. If there are more related fields, these adjudicators insist that the OOH does not really require a degree in any specialty at all for the position in question, and it is therefore not an H-1B occupation.
This is is becoming a favorite argument for USCIS adjudicators to use against H-1B Market Research Analyst petitions, because the OOH lists, not just one or two specialized areas of study as being related to this position, as is the case with some other specialty occupations, but six.
The OOH says:
"Market research analysts typically need a bachelor's degree in market research or a related field. Many have degrees in fields such as statistics, math and computer science. Other have backgrounds in business administration, the social sciences, or communications.
Courses in statistics, research methods, and marketing are essential for these workers. Courses in communications and social sciences, such as economics, psychology and social science, are also important."
As will be seen above, the second paragraph, in addition to the half dozen related bachelor degree college majors listed in the first paragraph, mentions not majors or areas of concentration, but rather a total of eight specific types of courses, which are described as "essential" or "important" for this position.
Many of these courses are taught in more than one of the six different college degree major programs mentioned in the first paragraph, so they are not actually separate fields of study from those majors.
Moreover, of the eight types of courses mentioned, three are obviously included in almost any marketing program, namely, statistics, research methods and marketing itself. These are not merely "related" courses, they are marketing research courses.
Three more of the courses mentioned, economics, psychology and sociology, are included (according to the above OOH quote) in the field of "social sciences". Therefore, if the second OOH paragraph quoted above is read carefully, it lists only three types of courses as being related to the position of Market Research Analyst - marketing related courses, social science courses and communications.
Even if the OOH's list of six possible majors, including only three different types of courses, were considered to be a "variety" of studies, as claimed in at least one RFE I have received for this occupation, the OOH does not state that any one of the above courses will be sufficient to qualify someone as Market Research Analyst.
Instead, the OOH suggests that all of them are necessary, or at least highly desirable, for this position.
Based on common sense, this should be an argument for concluding that the position of Market Research Analyst is more specialized than other positions which only require knowledge of one or two fields.
But this is not the way that USCIS officers have been reading the above OOH passages. Instead, they have been taking the ball of more than one field of study and running with it - but not into the end zone. Instead, they are heading off a logical and intellectual cliff.
Consider the following passage from a recent RFE which I received from the California Service Center for the above position in an H-1B petition. After quoting the first of the two OOH
"There is no standard for how one prepares for a career as a market research analyst 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 [normally requiring a bachelor degree in a particular specialty]."
This is the direct opposite of what the OOH actually says in the above quoted passages. Nowhere does the OOH say that there is "no standard" of education for preparation as a Market Research Analyst, or that the requirements "vary by employer".
This goes beyond merely distorting the OOH. It amounts to making up the adjudicator's own OOH "statements".
But the RFE does not stop there. It also alleges:
"Merely performing the normal duties of a position that does not require a bachelor degree in specific specialty, does not establish that the duties are specialized and complex even if the beneficiary has a degree in a field of study related to the occupation - every college graduate does not qualify as a member of a specialty occupation."
One can only ask what kind of tortured reading of the English language can transform a list of no more than six different majors, comprising only three separate areas of study, into a conclusion that "every college graduate" can allegedly become a Market Research Analyst.
In my next post, I will show how the CSC's attempt to turn the OOH into its opposite not only distorts its view of the first of the four listed criteria for a specialty occupation discussed in this post and my previous one, but also makes it impossible to consider the other three criteria objectively.
Finally, I will discuss a recent federal court decision, Residential Finance Corporation v. USCIS, which puts reason and reality back into this discussion, but has been largely ignored by the USCIS.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping professional, business and family based immigrants overcome the obstacles of our complex immigration system for more than 30 years. His practice includes H-1B and O-1 work visas, as well as green cards through labor certification, extraordinary ability and opposite or same sax marriage, among other immigration and citizenship cases. His email address is email@example.com
Updated 04-23-2014 at 06:02 AM by ImmigrationLawBlogs
The following is the first part of a three part series describing attempts by some USCIS adjudicators to downgrade the long-recognized H-1B specialty occupation of Market Research Analyst into a position which no longer merits H-1B approval by distorting the language of the OOH and ignoring an important federal court decision directly in point.
For tens of thousands, if not almost a hundred thousand, employers and would-be specialty workers this year, the stubborn refusal of Congress to remedy the shortage of H-1B visas over the past decade is bad enough. So is the fact that the Obama administration is not taking more vigorous action to deal with this situation (and yes, there are at least partial administrative remedies which could be put in place, such as expanding the scope of Optional Practical Training - see my next post).
But to add insult to injury, it is not enough only to be among the lucky few (this year, about 30 percent of beneficiaries if one has a bachelor degree - about 50 percent for US master degree holders) to have one's petition picked for filing in the H-1B lottery.
One must then overcome another hurdle - the tendency of USCIS adjudicators, relying on the US Department of Labor's (DOL's) Occupational Outlook Handbook (OOH), to "dumb down" certain positions which used to be accepted as "specialty occupations" for H-1B purposes, by claiming that they no longer require a bachelor degree in a specialty related to the duties of the position.
The current edition of the OOH has a number of examples of this. In past editions of the OOH, the position of Fashion Designer was listed as normally requiring a bachelor degree in Fashion Design or a related field. This is no longer true, according to the current OOH edition.
The same is true for certain IT positions, such as Computer Support Specialist and Computer Systems Analyst. One might ask why, in the opinion of the DOL, as followed by USCIS, these occupations are now "easier" to perform than before, to the point of requiring less rigorous educational preparation, when both the technology and the demands of the relevant markets are clearly becoming more complex.
But that is also a subject for a future post. In this one, I will discuss only one H-1B specialty occupation - Market Research Analyst - as a case study in how USCIS examiners are using an untenable form of sophistry to try to twist the clear intent and meaning of the OOH into its opposite, while ignoring a Federal Court decision which demolished the argument on which these same examiners have been relying.
As all H-1B practitioner's know, there are four criteria in the regulations for determining whether a given position is an H-1B specialty occupation. It is only necessary to meet one of the four, but, to paraphrase what George Orwell famously said about animals in his 1945 novel "Animal Farm", all H-1B specialty occupation criteria are equal, but some are more equal than others.
As a practical matter, and as my discussion of a typical RFE in my next post will show, the first of the four listed criteria in the H-1B regulations is the "most equal" of the four criteria. If a USCIS adjudicator thinks that this one has not been met, he or she may be quite skeptical about whether any of the others has been met either.
This can almost amount to a presumption against the position being a specialty occupation that effectively precludes independent consideration of the remaining three criteria on their own merits.
The all important first criterion, as applied in numerous AAO decisions, is clearly described in an RFE which I received recently (though the language of the actual regulation itself is not nearly as precise -see 8 C.F.R. Section 214.2(h)(4)(iii)(A)(1)) as follows:
"A baccalaureate or higher degree, or its equivalent, in a specific field of study is normally the minimum requirement for entry into the particular position;"
The issue raised by this criterion is the meaning of the words "in a specific field of study" (which are not actually in the regulation, but which the AAO, as mentioned above, has read into the regulation based on the language of the H-1B statute).
In order to determine whether a position requires a bachelor degree "in a specific field of study", USCIS looks to the OOH. The OOH entry for Market Research Analyst states:
"Market Research Analysts typically need a bachelor's degree in market research or a related field."
For anyone familiar with the OOH, it will be clear at a glance that this is the classic OOH way of saying that a particular occupation requires a specialty bachelor degree, which is the essential USCIS requirement for an H-1B specialty occupation. For example, the OOH entry for Accountants and Auditors has almost identical language. The same is true for Software Developer.
To the best of my knowledge, these latter two positions are almost never questioned as specialty occupations by USCIS. Therefore, the use of virtually the same language for Market Research Analyst i nthe OOH should be enough to put an end to any discussion about whether this position meets the criterion for a specialty occupation mentioned above.
But, according to USCIS, that is not the end of the discussion. The reason is that the OOH lists, not just one, but several different fields of study as being related to the position of Market Research Analyst. These fields, all of them well-recognized as specialty study areas themselves, include disciplines such as marketing, business, social science, economics, statistics and communications, among other similar areas of study.
Even though it is hard to argue with the proposition that all of the above fields are related to the position of Market Research Analyst, some USCIS examiners, and the AAO itself, have taken the enormous leap of logic from this to argue that since there are several related fields of study, therefore no specific field of study at all is required to qualify for this position and that it is therefore not an H-1B specialty occupation.
To be continued in my next post.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping professional, business and family based immigrants overcome the obstacles of our complex immigration system for more than 30 years. His practice includes H-1B and O-1 work visas, as well as green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases His email address is firstname.lastname@example.org
Updated 04-23-2014 at 06:16 AM by ImmigrationLawBlogs
In the past week, the blogosphere has been full of comments about remarks by two House Democratic leaders, Nancy Pelosi (CA) and Steve Israel (NY), suggesting that Republican racism may have something to do with the GOP's opposition to immigration reform.
Surprise, surprise! Who knew?
Could the same party which rammed the harsh anti-immigrant IIRIRA though Congress without debate in 1996 by attaching it to a veto-proof appropriations bill just before a presidential election, and which, in 2005, tried to criminalize the entire immigration system by passing the House "Sensenbrenner" immigration bill; and which killed immigration reform in 2010 and again in July, 2013 and supported "self-deportation" in the 2012 election possibly be motivated by anti-Latino and anti-minority racism?
How could anyone think such a thing?
Well, here is some news for you. People who are actually the most affected by the GOP's racism against Latino and other brown immigrants have been saying the same thing for a long time - but more directly and openly than our Congressional leaders are finally beginning to do.
One of the most eloquent voices I have found on the Internet is that of a blogger who calls herself Dee. She wrote an article that was posted more than a year ago, on February 21, 2013, when the debate over last year's failed immigration reform bill (and it has failed - we may not see a reform bill again until after the 2016 presidential election) was just beginning to heat up.
In her profile, Dee states that she is a Texas-based Mexican-American whose parents, grandparents and great grandparents were all born in the US. She is married to an Irish-American.
The following are some extracts from her article: Immigration Talk with a Mexican American: Tea Party Racists Scream Violence, Guns and Mass Deportation at John McCain's Town Hall Meeting
"I think we all knew it was only a matter of time before the Republican teaparty base would rebel against Comprehensive Immigration Reform. It is just as I predicted. Republicans are coming out of their closets and speaking out against Immigration Reform that includes and type of legalization for the 11M here, including for the Dreamers."
She goes on to describe Senator Marco Rubio (R-FL) as the Republicans' "token Latino", whom they lifted up on their shoulders to try to get the Hispanic vote by supporting immigration reform.
"Racist callers on Talk Radio started calling in, demanding "Racial Profiling" BORDER SECURITY be the 1st step. The next thing you know, the Talk Radio Pundits start talking about "Border Security" 1st. Then their Golden Boy Rubio starts demanding "Border Security" first...
Now the HATERS are starting to headline Talk Radio. Yesterday, I heard Mark Krikorian on Bill Bennett's radio show. Krikorian is an Infamous Right Wing Racist Extremist who often talks about Mass Deportation and the "Rule of Law". Bennett and Krikorian were talking about Latinos being "born takers" and most wouldn't vote for the Republicans anyway...He warned that another "amnesty" would destroy America."
"I almost feel sorry for the Republicans. They are a party against themselves. The teapartiers are motivated by the KKK of the past. They are motivated by ther White Supremacists of the previous century. They have nowhere to go but to face their own demise. They neither want to know nor do they want to understand that our Country is EVOLVING into a Beautiful Multicultural Society." (Emphasis added.)
14 months after the above was written, knowing what we now know about how the Tea Party controlled House Republicans have killed immigration reform despite the attempt of the bipartisan Senate Gang of Eight to bend over backwards to accommodate Republican right wingers on Border Security to the tune of a $46 billion boondoggle for defense contractors at taxpayers' expense, can anyone say that this outspoken Mexican-American commentator was wrong?
Let us hope that Reps. Pelosi's and Israel's comments about Republican racism as the main obstacle to immigration reform will only be the beginning. The man behind the desk where the buck stops in the Oval Office also needs to speak out more strongly, and to take stronger action to stop the deportations - and to end the vendetta being carried out on the part of some USCIS Service Center officials against H-1B, O-1 and other educated, professional immigrants whose skills, dedication and hard work bring such great benefit to America's economy - and society.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping professional, business and family based immigrants overcome the obstacles of our complex immigration system for more than 30 years. His practice includes H-1B and O-1 work visas, as well as green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases. His email address is email@example.com
Updated 04-16-2014 at 11:44 AM by ImmigrationLawBlogs
In my last post, I suggested that the H-1B visa shortage is related to wider right wing paranoia and fear of a "huge wave" of immigration inundating the US. Senator Rend Paul (R-KY) reflected these sentiments on a Sunday talk show on April 13 when he made the inflammatory statement that America "can't invite the whole world" to immigrate here. (See Huffington Post, updated April 14, 2014)
For a long time, anti-immigrant groups such as NumbersUSA, FAIR and Center for Immigration Studies have been trying to present the immigration issue in terms of the argument that America simply has no room or "resources" for more people, regardless of where they are from.
However, an April 13 article in the Huffington Post entitled A Study on the Changing Racial Makeup of "The Next America" shows that this contention is nothing but hypocritical nonsense.
(Sorry, I do not have a link. Google should be able to bring up the article in a few seconds.)
This article states:
"However, our changing racial makeup is due to a shift in immigrants' countries of origin: while 88 percent in 1900 were from Europe, Europeans only comprise 12 per cent of the immigrant population today. Conversely, immigration from Hispanic countries is on the rise, with over 50 per cent of all immigrants to the US today hailing from Latin America. So while the Hispanic population of the US had been increasing, the influx of white Americans has been decreasing."
The article goes on to state that according to studies by Northwestern University, "white Americans may feel threatened by the prospect of becoming a racial minority " and that when faced with this prospect, "they tended to endorse more conservative political policies ".
Opposition to immigration, of course, is high on the list of "more conservative political policies".
The article continues:
"This has some people worried that we'll see a deepening divide between whites and other racial groups;"
The above conclusion be an understatement; we are already seeing a serious racial divide over immigration, whether concerning white attitudes toward unskilled immigrants from Latin America or toward highly educated IT professionals from Asia.
(It is not my intention to engage in stereotypes, however: there are also many well educated professionals from Latin America in this country, as well as unskilled, less educated Asian immigrants.)
But the racial divide is here and may be growing as America's demographics change. Can anyone seriously think that this has nothing to do with this country's seeming inability to remedy the chronic H-1B shortage, which makes a mockery of America's ideals and reputation as a country of opportunity that places a premium on education, special skills and hard work?
In my next post, I will suggest a partial remedy for the H-1B visa shortage without Congressional action. This would involve expanding the F-1 Optional Practical Training program, something which is already being used to remedy some of the hardship and injustice caused by Congress' refusal to increase the number of H-1 visas, and which has withstood a challenge by immigration opponents in a important federal circuit court decision.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping professional, business and family immigration clients overcome the obstacles of our complex immigration system for more than 30 years. His email address is firstname.lastname@example.org
Updated 04-14-2014 at 09:14 AM by ImmigrationLawBlogs