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Does USCIS Definition of H-1B "Specialty Occupation" Make Sense? By Roger Algase

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There are many challenges faced by employers filing H-1B petitions on behalf of their employees. One of the biggest, which is on everyone's mind as we approach April 1, is the fact that unless the economy is exceptionally weak, which does not seem to be the case this year, there will most likely not be enough H-1B visas available to ensure that all cases will accepted for filing.

Last year, according to statistics, only approximately 60 percent of petitions for employees subject to the annual H-1B cap were accepted for filing, while the other 40 per cent were rejected for lack of visas. While there is wide support in both parties for increasing the number of H-1B visas, the broader politics of immigration reform makes it unlikely that this problem will be fixed any time soon.

Another challenge, which is being discussed in a series of Immigration Daily articles by two distinguished immigration attorneys, David Nachman and Rabindra K. Singh, is that of dealing with the complicated and punitive US Labor Department regulations concerning H-1B prevailing wages, posting and record keeping.

My post today will discuss a third, and no less important challenge - getting an H-1B case approved. In order for an H-1B petition to be approved, it is not enough to show that the sponsored employee has a bachelor or higher degree (or the equivalent) in a particular specialty occupation.

It is also necessary to convince the USCIS Service Center that the offered job (which for some reason USCIS officers like to call the "proffered position" - borrowing a word which I always thought was connected mainly with criminal law) qualifies as a specialty job.

There is already a large literature of USCIS, Legacy INS and federal court decisions about this issue, and claiming that a given position does not normally need someone with a bachelor or higher degree in a particular specialty in order to qualify is a favorite, classic, argument used by USCIS examiners to deny many H-1B cases.

As most readers no doubt already know, there are four criteria for a specialty occupation listed in the H-1B regulations, which can be stated as follows. (The following is not the exact language of the regulations, only a summary. Also, the term "bachelor degree" should be understood as including work experience and/or education equivalent to a bachelor degree - another complicated issue which will not be discussed further in this post):

1) The position normally requires a bachelor or higher degree in a particular specialty.

2) The requirement of a specialty bachelor or higher degree for the position is normal in the industry in question,

3) The employer itself normally requires a specialty bachelor or higher degree for the position or similar positions.

4) The duties of the position are so specialized and complex as to be normally associated with attainment of a specialty bachelor or higher degree.

All of the above requirements are equal in theory, in the sense that if any single one of them is met, the job must be accepted as a "specialty occupation" qualifying for H-1B. However, just as George Orwell famously wrote in his 1945 novel Animal Farm that "All animals are equal, but some animals are more equal than others", it also turns out that all H-1B specialty occupation criteria are equal too, but some criteria are more equal than others.

The one that is most "equal" of all is the first criterion, namely that a specialty bachelor or higher degree has to be the normal requirement for the offered position. In my experience, and based on a reading of numerous Service Center and AAO decision, if USCIS doesn't agree that this first criterion has been met, then Lots of Luck in convincing the agency that any of the other three criteria applies either.

In deciding whether a specialty bachelor or higher degree is the "normal requirement" for any given job, the USCIS places very heavy reliance on a US Department of Labor publication known as the Occupational Outlook Handbook ("OOH"), which in a entry called "How to Become One", lists educational and work experience requirements for hundreds of different jobs.

The only problem is that this publication, which is updated every two years, is not written as a manual for immigration officers. It is intended as a general guide for people choosing or thinking of changing careers.

Therefore, its comments about what kind of education or experience may be required for a particular position do not always have the kind of precision that is required to make a legal judgment about whether a particular requirement of an H-1B regulation has been met. To the contrary, the language of the OOH can often rival that of the ancient Delphic or Sybiline oracles in obscurity.

However, even when the language of the OOH is clear, it can be distorted or just blatantly ignored by USCIS officers who may appear to care more about showing how "tough" they can be in H-1B cases in order to appease public anti-H-1B sentiment driven by right wing (and sometimes also left wing) propaganda about "protecting American jobs" against "cheap foreign labor" (by well educated H-1B professionals who may be earning six figure annual salaries)!

I will discuss some examples of this in recent RFE's I have received in a few of my own pending H-1B cases in my next post. These examples will focus on the absurd way in which immigration officers are distorting the plain language of the requirement that the job must require a bachelor or higher degree "in a related specialty" past the point of no return.

To be continued.
_______________________________
Roger Algase is a graduate of Harvard College and Harvard Law School. In more than 30 years as a New York immigration lawyer, he has been helping H-1B, labor certification, extraordinary ability, marriage-based and other business and professional immigrants deal successfully with our complex immigration system. His email address is algaselex@gmail.com

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Updated 03-08-2014 at 01:07 AM by ImmigrationLawBlogs

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