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USCIS Twists Words, Concepts, to Make H-1B Approvals Harder: Part 1. By Roger Algase

Rating: 3 votes, 5.00 average.

Now that H-1B season has begun, we are all too well aware of the limited number of visas available for new cases, i.e., workers who do not already have H-1B status or are not otherwise exempt from the 65,000 annual cap (with an additional 20,000 annual visas available for US master degree holders).

As mentioned in the POLITICO article discussed in my companion January 24 post, immigration reform looks unlikely to pass (if it passes at all this year, which is highly questionable)) before the end of this summer. Therefore, as mentioned in a January 23 Immigration Daily post by Anthony Siliato and Scott Malyk, there may be a large percentage of H-1B filings rejected this spring because of the visa shortage.

USCIS, of course, has little or no control over the number of available H-1B visas each year. Only Congress can remedy that. But not to worry - USCIS is still stepping into the fray - to make H-1B approvals harder to get for at least some employers who are lucky enough to have their petitions accepted for filing!

A case in point involves the job title of Market Research Analyst, which used to be a routinely approved H-1B occupation. Recently, however the USCIS Service Centers which handle H-1B cases have been sending out RFE's arguing that Market Research Analyst is not a specialty occupation for the following reason:

The H-1B regulations (as interpreted by USCIS and Legacy INS for many years past) require that for a position to be accepted as an H-1B level one, the job duties must normally require a bachelor degree (or the equivalent) in a field of study in or closely related to the specialty in question.

To pick a simple example, if the H-1B job is for a geologist, the sponsored employee must have at least a bachelor degree (or the equivalent) in geology. However, not every case is this simple. There are many occupations which clearly require specialized bachelor degrees, but where there may be more than one specialized area of study related to the position.

For example, a financial analyst may have a bachelor degree in finance, economics, accounting, or even in business administration with a major in one of the above fields, but no one would argue that a general liberal arts graduate (do they still exist?) without a related, specialized bachelor degree could perform this kind of work.

For many years up until quite recently, the same was true of the occupation of Market Research Analyst. Certainly, a bachelor degree in the specialty field of marketing would qualify someone for that position.

But, for as long as I can remember in the many years that I have been handling H-1B Market Research Analyst cases, the OOH (US Department of Labor Occupational Outlook Handbook), which is in effect the USCIS's Bible in deciding which occupations require specialty bachelor degrees, has listed several different degrees besides Marketing as related to the position of Market Research Analyst.

These alternative degrees have included marketing-related areas of study such as business, sociology, economics, statistics and psychology. It is true that this provides an element of variety. But all of these fields are clearly specialty fields.

Nothing in the OOH has ever said that a general liberal arts degree (or, a degree in an unrelated subject such as, to use my earlier example, geology) is acceptable for a Market Research Analyst position.

But recently, USCIS has turned away from the real world and common sense, and started requiring a one to one correlation between the offered position and the type of degree or major which qualifies someone for that position.

If there are two or more different areas of study, even if they are both considered to be specialized fields related to a particular position, the USCIS will no longer accept that position as a "specialty occupation" for H-1B purposes.

At least this is what the USCIS is saying about Market Research Analyst and other similar positions, according to recent RFE's and even H-1B denials, and also according to a recent H-1B federal court decision which strongly condemned USCIS for its narrow and unrealistic approach to this issue. USCIS has ignored this important decision, as will be discussed in my next post.

To be continued.

_________________________________

Roger Algase, a New York attorney and graduate of Harvard College and Harvard Law School, has been helping H-1B specialty workers, O-1 and EB-1 extraordinary ability professionals, marriage-based immigrants, labor certification green card applicants and other business and family immigrants succeed in overcoming the complexities of our immigration system for more than 30 years.

He has made it possible for immigrants from many parts of the world to achieve their goals, advance their careers and build a solid foundation for their lives in America. His email address is algaselex@gmail.com



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Updated 01-27-2014 at 09:41 AM by ImmigrationLawBlogs

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