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USCIS's Senseless Definition of H-1B "Specialty Occupation": Part 2. By Roger Algase

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In my March 6 post, I focused on the issue of how the USCIS defines a "specialty occupation" for H-1B purposes. This post will continue that discussion, in the light of what appears to be a senseless and deliberately distorted agency-wide policy, not just the mistaken views of a handful of rogue or inadequately trained Service Center examiners.

I say this because the USCIS argument that I am about to describe, which has been criticized in the strongest possible terms in a recent federal court decision which Service Center officers have evidently chosen to ignore (or may conceivably be under instructions from their superiors to do so), has been raised in three different RFE's I have received recently, two from the Vermont Service Center and one from the California Service Center.

(One of the three cases has since been approved; a second is being withdrawn for unrelated reasons, and the third is pending, awaiting my response).

First, I will frame the issue more precisely. As mentioned in my previous post, the H-1B regulations provide four criteria for determining whether a given position is an H-1B "specialty occupation".

While the regulations also provide that meeting any one of the four criteria is enough to qualify the offered position as an H-1B level job, in practice (at least based on my experience), USCIS examiners give the greatest weight to the first of the four criteria, which reads as follows, 8 C.F.R. Section 214.2(h)(4)(iii)(A)(1):

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

The above regulation does not say that the degree (or equivalent) must be in a particular specialty. However, the AAO (Administrative Appeals Office) of the USCIS has long held that this is the way that the regulation should be interpreted, and this interpretation is now so well accepted that it would be pointless to challenge it.

The question, therefore, is: what does the provision that the position must require a degree in a "specific specialty" mean? Does it literally mean that the degree normally required for the position must be in one particular field, and one field only, or can the degree be in any one of a limited number of fields normally considered as related to the offered H-1B position?

If the former is the correct interpretation, then few H-1B petitions indeed would be approvable, and we would not have to worry very much about the annual cap on H-1B visas. Only a very limited number of occupations have an exact one-to-one correspondence between the duties of the position and the title of the required degree.

Examples are occupations such as law, medicine and engineering. If only lawyers, doctors and engineers could qualify for H-1B approval, however, it is highly unlikely that the 65,000 annual limit (or 85,000, for US advanced degree holders) on new H-1B visas would ever be reached. One of the most contentious issues in all of employment-based immigration law would all but disappear from discussion sites such as this one.

Therefore, for many years, USCIS and its predecessor INS have followed a common sense approach which recognizes that a specialized body of knowledge may be acquired though more than just one type of degree. For example, in order to work as an accountant, one can have a bachelor or higher degree in either accounting or finance. One can also have the above degree in business administration, with a heavy dose of coursework in accounting, finance or economics.

There are also similar varieties of degrees which can qualify someone for a job in economics, graphic design, as a writer/editor, computer software developer, or in numerous other positions which are nevertheless traditionally recognized as H-1B specialty occupations.

In the past, USCIS has rarely used the absurd argument (in most instances) that if there is more than one single bachelor or higher degree major that could qualify someone of a particular job, but there instead several different but related fields of bachelor degree level study that would be acceptable to an typical employer hiring for the position, then the job is not a specialty occupation.

But this respect for reason and reality on the part of USCIS H-1B examiners appears to be vanishing. An example is the position of Market Research Analyst, formerly one of the longest and best-recognized H-1B positions of all. This will be discussed in my next post.

To be continued.

________________________________
Roger Algase is a graduate of Harvard College and Harvard Law School. During his more than 30 years as a New York immigration lawyer, he has been helping H-1B and many 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 12:56 AM by ImmigrationLawBlogs

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Comments

  1. ImmigrationLawBlogs's Avatar
    By mistake, I originally posted a comment here which was meant to be posted instead under my following entry, dealing with with Republican demagogueryon deportation and Ann Coulter's latest racist anti-immigrant remarks.

    Please see my March 8 post on those topics, which are unrelated to my H-1B comments in this post. I apologize for any confusion.

    Roger Algase
    Attorney at Law
    Updated 03-10-2014 at 06:53 PM by ImmigrationLawBlogs
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