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USCIS Downgrades Market Research Analysts Below H-1B Level: Pt. 3. By Roger Algase

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This is the third post in my five-part case study of a USCIS adjudicator's attempt, similar to those of other adjudicators from whom I have also recently received RFE's (albeit less aggressive ones), to downgrade the long recognized H-1B position of Market Research Analyst to a "non-specialty" occupation by distorting the plain language of the OOH handbook and ignoring a leading federal court decision which rejected the same argument that this adjudicator and other USCIS adjudicators are continuing to use in other similar cases.

The significance of this attempt, contained in RFE's in three different H-1B cases I have received involving this same position and making the same argument within the past several months, goes beyond the individual cases concerned.

It indicates that there may be an important policy shift at higher levels of the USCIS in favor of adopting an unrealistically narrow reading of the regulations containing the criteria for determining whether a given position is a specialty occupation.

This approach could be used as a pretext to make it more difficult, if not impossible, for US employers to hire foreign Market Research Analysts in the future. Beyond that, it could become an excuse to deny H-1B petitions for many other traditionally recognized specialty occupations as well.

If this is USCIS' answer to the H-1B visa shortage, I hope that the agency will find a better one.

In my first post, dated April 21, I outlined the basic issue: the H-1B regulations contain four criteria for determining whether a given position qualifies as a specialty occupation. In theory, it is only necessary to meet any one of the four requirements, but, as I argued in that post, the first is the one that USCIS adjudicators consider to be the most important in practice.

This requirement, contained in 8 C.F.R. Section 214.2(h)(4)(iii)(A)(1), and as interpreted in numerous AAO decisions, is that a bachelor degree or equivalent in a specialty field of study related to the offered H-1B position (which USCIS insists on calling the "proffered" position, despite the fact that "proffered" is a term used in criminal procedure, which has nothing to do with H-1B), must be the normal requirement for an entry-level job in the position in question.

I also pointed out that the OOH (Occupational Outlook Handbook of the US Department of Labor), which USCIS uses as its "Bible" in these matters, is quite clear in stating that the position of Market Research Analyst normally requires a bachelor degree in market research or a related field. Therefore, there should be no question that this position is an H-1B specialty occupation.

(The OOH is not always this clear for every position; sometimes it reads more like the Delphic or Sibylline oracles or Shang Dynasty oracle bones.)

However, as I also pointed out, some USCIS RFE's and AAO decisions have taken the position that if there are more than one, or at most perhaps two or three, specialty fields related to the position in question, then it is not an H-1B level specialty occupation because it does not require a bachelor degree in a particular field.

In my second post, dated April 22, I described how, in a recent RFE from the California Service Center, USCIS seized on the fact that the OOH lists not just one or two, but at least a half dozen areas of study as related to the position of Market Research Analyst, in order to conclude that there is no particular specialty area of study required for this position, and that "every college graduate" is qualified to be a Market Research Analyst.

Based on this absurd conclusion, which is directly contradicted by the express language of the OOH quoted in my previous post, the RFE argues that the all-important first of four listed criteria in the regulations has not been met.

But there still remain three other criteria. If the first one has not been met, why can't an H-1B petitioner for a market research analyst meet one of the other three and still show that the offered position qualifies as a specialty occupation?

This post will show, based on the California Service Center RFE mentioned in my previous posts, that the same negative approach which led the adjudicator to conclude that the first criterion had not been met also made it impossible to consider the other three criteria objectively.

The second criterion requires that the specialty degree requirement for the position in question must be "common to the industry in parallel positions among similar organizations." In the alternative, the duties of the position must be so "complex and unique" that they can be performed only by someone with a specialty bachelor degree. See 8 C.F.R. Section 214.2(h)(4)(iii)(A)(2).

In connection with this requirement, the RFE asks for evidence that other similar organizations with the same number of employees as the petitioner require a specialty bachelor degree for the same position. Since the petitioner in this case is one of the largest US companies, if not the largest company, in its field, this evidence is virtually impossible to provide.

Alternatively, the RFE asks for job listings by similar organizations (of which there are few, if any, in this case) showing the specific educational background required to perform the position. But real world job listings which are this specific are few and far between, if they exist at all.

Moreover, even before the petitioner had any chance to respond to this request, the RFE had already determined that the above criterion has not been met! The RFE states:

"Clarify what it is about petitioner's business that is so specialized, distinctive and exceptional that it requires a degree in a specific field of study even though it is not an industry minimum standard." (Emphasis added.)

Based on the above language, there would be no point in the petitioner's showing evidence that a specialty bachelor degree is the normal requirement for this position among other similar organizations in its industry (if there were any). The RFE adjudicator's mind was evidently already made up on this issue.

My next two posts will discuss the remaining two criteria for a specialty occupation listed in the H-1B regulations and show that, as framed in the above RFE, the petitioner had little or no chance of providing a satisfactory response concerning these criteria either.

It will also discuss the federal district court decision which would put an end to the entire argument, if only USCIS would show it the same deference which it often does to federal court decisions that are less favorable to immigration petitioners or applicants.

To be continued.

_________________________________

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 05-10-2014 at 04:30 AM by ImmigrationLawBlogs

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