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USCIS Distorts OOH to Downgrade H-1B Specialty, Pt. 2. By Roger Algase

Rating: 3 votes, 5.00 average.

This is the second installment of my comments concerning recent attempts by USCIS adjudicators to distort the OOH and disregard a leading federal court decision in order to delay or deny approval of H-1B petitions for the long recognized specialty occupation of Market Research Analyst.

This issue is not only important because Market Research Analyst is a popular H-1B position, since no company, large or small, can survive for long without market research.

It is also important because if USCIS officials can get away with twisting the OOH into the opposite of what it really means and ignoring federal court decisions which the agency might not like in order to deny meritorious H-1B cases, neither US employers nor skilled foreign specialty workers will be able to rely on the H-1B program, as a comment to my April 21 post points out.

The H-1B visa program already resembles Aeneas, the hero of Virgil's great epic, whom the poet describes as multum ille et terris iactatus et alto ("he was severely buffeted on land and sea") because H-1B has already been decimated by the senseless, artificial, Congressionally imposed visa shortage.

But if USCIS continues to add to the problems caused by Congressional inaction by making up its own arbitrary and capricious interpretations of the OOH and refusing to follow relevant federal court decisions, the H-1B program will be in danger of becoming even less usable by the US employers and skilled foreign professionals whom it was originally intended by Congress to benefit.

In my April 21 post, I first quoted language from the OOH showing that the position of Market Research Analyst meets the classic, and most fundamental, test of an H-1B specialty occupation, because it normally needs a bachelor degree "in market research or a related field."

However, as that post also mentioned, USCIS adjudicators have argued, in effect, that the words "a related field" should be read narrowly to mean only one field of study, or at the most, perhaps two or three. If there are more related fields, these adjudicators insist that the OOH does not really require a degree in any specialty at all for the position in question, and it is therefore not an H-1B occupation.

This is is becoming a favorite argument for USCIS adjudicators to use against H-1B Market Research Analyst petitions, because the OOH lists, not just one or two specialized areas of study as being related to this position, as is the case with some other specialty occupations, but six.

The OOH says:

"Market research analysts typically need a bachelor's degree in market research or a related field. Many have degrees in fields such as statistics, math and computer science. Other have backgrounds in business administration, the social sciences, or communications.

Courses in statistics, research methods, and marketing are essential for these workers. Courses in communications and social sciences, such as economics, psychology and social science, are also important."



As will be seen above, the second paragraph, in addition to the half dozen related bachelor degree college majors listed in the first paragraph, mentions not majors or areas of concentration, but rather a total of eight specific types of courses, which are described as "essential" or "important" for this position.

Many of these courses are taught in more than one of the six different college degree major programs mentioned in the first paragraph, so they are not actually separate fields of study from those majors.

Moreover, of the eight types of courses mentioned, three are obviously included in almost any marketing program, namely, statistics, research methods and marketing itself. These are not merely "related" courses, they are marketing research courses.

Three more of the courses mentioned, economics, psychology and sociology, are included (according to the above OOH quote) in the field of "social sciences". Therefore, if the second OOH paragraph quoted above is read carefully, it lists only three types of courses as being related to the position of Market Research Analyst - marketing related courses, social science courses and communications.

Even if the OOH's list of six possible majors, including only three different types of courses, were considered to be a "variety" of studies, as claimed in at least one RFE I have received for this occupation, the OOH does not state that any one of the above courses will be sufficient to qualify someone as Market Research Analyst.

Instead, the OOH suggests that all of them are necessary, or at least highly desirable, for this position.

Based on common sense, this should be an argument for concluding that the position of Market Research Analyst is more specialized than other positions which only require knowledge of one or two fields.

But this is not the way that USCIS officers have been reading the above OOH passages. Instead, they have been taking the ball of more than one field of study and running with it - but not into the end zone. Instead, they are heading off a logical and intellectual cliff.

Consider the following passage from a recent RFE which I received from the California Service Center for the above position in an H-1B petition. It states:

"There is no standard for how one prepares for a career as a market research analyst and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result the proffered position cannot be considered to have met this criterion [normally requiring a bachelor degree in a particular specialty]."

This is the direct opposite of what the OOH actually says in the above quoted passages. Nowhere does the OOH say that there is "no standard" of education for preparation as a Market Research Analyst, or that the requirements "vary by employer".

This goes beyond merely distorting the OOH. It amounts to making up the adjudicator's own OOH "statements".

But the RFE does not stop there. It also alleges:

"Merely performing the normal duties of a position that does not require a bachelor degree in specific specialty, does not establish that the duties are specialized and complex even if the beneficiary has a degree in a field of study related to the occupation - every college graduate does not qualify as a member of a specialty occupation."

One can only ask what kind of tortured reading of the English language can transform a list of no more than six different majors, comprising only three separate areas of study, into a conclusion that "every college graduate" can allegedly become a Market Research Analyst.

In my next post, I will show how the CSC's attempt to turn the OOH into its opposite not only distorts its view of the first of the four listed criteria for a specialty occupation discussed in this post and my previous one, but also makes it impossible to consider the other three criteria objectively.

Finally, I will discuss a recent federal court decision, Residential Finance Corporation v. USCIS, which puts reason and reality back into this discussion, but has been largely ignored by the USCIS.

_________________________________
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 sax marriage, as well as other immigration. His email is algaselex@gmail.com

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Updated 05-09-2014 at 07:14 PM by ImmigrationLawBlogs

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Comments

  1. Say it again?'s Avatar
    With millions of well-qualified tech workers among this nation's long-term unemployed, half of our nation's STEM graduates unable to find technical work and salaries for sociology/anthropology higher for information technology graduates, the situation is VERY clear.

    This nation needs to DRASTICALLY curtail the volume of cheap, temporary workers being imported for BILLIONS in profits by Indian outsourcing companies, and used by US corporate using to drive profits and CEO bonuses. All at the expense of our citizens and this nation's future.

    As there will be severe impacted on CEO bonuses and corporate profits, there is also a obvious solution. H-1B visas should instead be used for the massive import of cheap foreign lawyers. This will help this nation on many fronts including profits and driving some greedy ******* void of national loyalty into lives of poverty.
  2. ImmigrationLawBlogs's Avatar
    Say it again?'s rant actually supports the argument for increasing the number of H-1B visas. This is because it shows that the opposition to H-1B, like the opposition to immigration reform in general, is based mainly on falsehood and hate, not reason or reality.

    Roger Algase
    Attorney at Law
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