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H-1B Petitions - Some Tips For Success: Part 1. By Roger Algase

Rating: 3 votes, 5.00 average.

As we come closer to the April 1 filing date for new H-1B petitions this year, everyone is of course wondering how soon the 65,000 annual limit (with 20,000 additional visas available for US master degree holders) will be reached. However, having the case accepted for filing, which frequently involves a lottery because of shortage of visas, is, of course, not the only factor involved in a successful H-1B case.

It is also important to do everything possible to make sure that, once accepted for filing, the H-1B petition will actually be approved. This is particularly true in the current era of frequent requests for evidence (RFE's) and increasing denial rates.

As every H-1B petitioner knows, an H-1B visa is only available for someone who will be working in a "specialty occupation". This is defined as an occupation that normally requires a bachelor degree, or the equivalent, in a particular specialty.

Deciding whether or not a particular position is a specialty occupation or not is one of the most contentious issues in all of H-1B practice.

Claiming that the particular position offered in a given H-1B petition is not a specialty occupation because it can allegedly be performed by someone who does not have a bachelor degree in a particular specialty is an all too frequent excuse used by USCIS Service Centers and the Administrative Appeals Office (AAO) for denying H-1B cases. This is true even when the person being sponsored for H-1B ( the "beneficiary") is clearly qualified because he or she has a bachelor or higher degree in the specialty.

The H-1B regulations set forth four criteria for determining whether a given position is a specialty occupation. In theory, these criteria are independent of each other, and the regulation states that it is only necessary to meet any one of the four. However, in practice, many H-1B examiners give the greatest weight to the first of the four criteria.

If a USCIS examiner thinks that this first criteria has not been met, this negative view may often negatively color his or her assessment of whether any of the other three criteria have been met as well. These other three criteria will be discussed in future posts. This post will focus on the first criterion, which reads as follows:

A Baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.

The first thing to note here is that even though the regulation does not specifically say so, USCIS and the federal courts interpret the term "degree" in the above regulation to mean a degree in a particular specialty related to the position.

In deciding whether this requirement has been met, USCIS places very great weight on a publication of the US Department of Labor called the Occupational Outlook Handbook (OOH). This publication lists hundreds of different job titles and, among other things, provides information about the educational and experience requirements for each of them.

The only problem with this excessive reliance on the OOH, however, is that this publication, which is generally updated every two years, is not intended to be an H-1B specific guide. It is intended to help people interested in various jobs or careers decide which ones may be best suited for them, or how they can qualify for a career in a particular field.

This has little or nothing to do with whether a particular position qualifies as a "specialty occupation" for H-1B purposes. Therefore, it is very common to find in the OOH discussions of "how to become" qualified to work in a particular job vague statements such as that "many employers" require a bachelor degree in xyz field or fields, but "some employers" may accept a lesser degree, or a more general bachelor degree.

Does this mean that a specialty bachelor degree is a "normal" requirement the particular position? The OOH often does not answer this question more precisely, because that is not its function.

Another issue is when the OOH lists a bachelor degree in any one of several different, but related, fields as acceptable preparation for a particular position. For example, in the case of the position of Market Research Analyst, which used to be recognized as a specialty occupation without any question by the USCIS and its predecessor INS, the OOH lists a number of different bachelor degree majors as being related to the position.

These include fields such as not only marketing itself, but communications, social science, economics, statistics and business administration. Clearly, all of these are specialty areas of study. All of them are related to the duties of a Market Researcher, as the OOH makes clear.

But does the fact that several specialties are related to this position instead of only just one (such as: medicine - Physician; or law - Attorney, etc.) mean that Market Research Analyst is not a specialty occupation, and that anyone with a genral liberal arts degree only is qualified for this position?

It may not seem to make much sense, but this is in fact what USCIS has been arguing in a number of recent cases, as i will show in more detail in an upcoming post.

________________________________

Roger Algase is a New York Attorney and a graduate of Harvard College and Harvard Law School. For more than 30 years, through his close connection with his clients and personal attention to every case, he has been helping business and professional immigrants obtain successful results.

His main areas of practice are H-1B and O-1 work visas, and green cards through labor certification, extraordinary ability. and opposite or same sex marriage. His email address is algaselex@gmail.com

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Updated 12-25-2015 at 06:54 AM by ImmigrationLawBlogs

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