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USCIS Ignores Court and OOH in Attempt to Downgrade H-1B Specialty. By Roger Algase

Rating: 8 votes, 5.00 average.

The following is the first part of a five 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 upcoming 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 practitioners 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 in the 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, O-1 and L-1 work visas, J-1 training visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, as well as other immigration. His email is algaselex@gmail.com

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Updated 04-26-2014 at 01:26 AM by ImmigrationLawBlogs

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Comments

  1. lolo711's Avatar
    I have received the MRA "specialty occupation" RFE, for a marketing company, no less. I just do not understand why USCIS makes it so difficult. How can we advise our clients when USCIS is so erratic? After figuratively beating us over the head that the OOH rules, now USCIS says it does not? Where are we to find guidance? I guess we need to file only in the JX where Residential Financial Corporation v. USCIS was decided in District Court. Ridiculous.
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