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USCIS Downgrades Market Research Analysts Below H-1B Level: Part 4. By Roger Algase

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In my three previous comments on this topic, I have shown how at least some USCIS Service Center adjudicators, apparently following agency policy which may have been set at a higher level (since the same argument is being used at both the VSC and the CSC) are attempting to downgrade the long standing and well recognized specialty occupation of Market Research Analyst below H-1B specialty level in order to delay or deny approvals for petitions involving this position.

I have also argued that if the sophistry which USCIS is using against recognizing this position as an H-1B specialty, in defiance not only of the OOH but of a leading federal court decision which will be discussed in the next segment is successful, many other traditionally accepted H-1B positions may be in danger of disappearing from the spectrum of approvable cases as well.

In my first two posts, I discussed the first and most important (in the minds of most USCIS adjudicators and the AAO) of the four criteria for a specialty occupation listed in 8 C.F.R. Section 214.2(h)(4)(iii)(A) and showed how a distorted and logically untenable agency interpretation of the OOH in a recent RFE from the CSC has led to a false conclusion that the above position allegedly does not normally require a bachelor degree in a related specialty, and that this all important criterion has therefore not been met.

In my third post, I also showed that the RFE's distorted view of the first criterion for a specialty occupation led to a mistaken and prejudicial interpretation of the requirements of the second of the four listed criteria, amounting to a negative determination by the adjudicator before the petitioner even had a chance to respond to the RFE on this point.

In this fourth post, I will show that the same distorted agency view of the first criterion for a specialty occupation also distorts its interpretation of the third and fourth criteria for a specialty occupation listed in the above regulation.

Finally, in my fifth and final post on this topic, i will discuss a leading federal court decision which strongly upholds the above position as a specialty occupation and rejects the USCIS' tortured argument against it, but which the agency has evidently chosen to ignore.

The third of the four listed criteria for a specialty occupation - remember, it is only necessary to meet one of the four - reads as follows, 8 C.F.R. 214.2(h)(4)(iii)(A)(3):

"the employer normally requires a [specialty bachelor] degree or its equivalent for the position;"

Nothing in this regulation requires an employer to explain why it normally requires a specialty bacherlor degree. But the CSC's RFE which I have been referring to throughout this series of comments states as follows:

" Explain what differentiates petitioner's products or services from others in the industry and why it requires a baccalaureate level of study to perform the duties of this position." (Emphasis added.)

This language clearly goes beyond the scope of the regulation and shows the obvious influence of the faulty agency interpretation of the OOH discussed in my previous posts. This virtually precludes a fair decision on the third criterion, no matter how the petitioner responds.

But to appreciate the full force of the hostility which the CSC is showing toward the idea of continuing to recognize the position of Market Research Analyst as an H-1B specialty occupation (as USCIS and INS have been doing for more than 20 years), it is necessary to turn to the fourth criterion listed in the above regulation.

This criterion reads as follows, 8 C.F.R. 214.2(h)(4)(iii)(A)(4):

"The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a [specialty] baccalaureate or higher degree."

There is nothing in this regulation that requires a showing that the duties of the offered position are more specialized and complex than normal, or that they meet a particular standard of comparison with the duties of Market Research Analysts for other companies. The regulation only requires a showing that these duties normally require a specialty bachelor degree.

But since the RFE, in its discussion of the first criterion as mentioned earlier, began by misreading the OOH to reach the untenable conclusion that this position does not normally require a bachelor degree in a particular specialty, the RFE now approaches the fourth criterion with the same misunderstanding. It states:

"Provide, in layman's terms, a clear explanation of what differentiates the proffered [sic] position from other related 'non-specialty occupation' positions. Compare and contrast those duties to be performed that are more discretionary, demanding, complex, highly advanced, specialized or sophisticated - exceeding industry or normal position standards - such that a baccalaureate level of education in a specific field of study is a realistic prerequisite for entry into the proffered [sic] position."
(Emphasis added.)

Not only is the requirement of comparison with other position standards nowhere to be found in this regulation, but the requirements of showing that the duties of the position are "discretionary", "demanding", "highly advanced" and "sophisticated" - "exceeding industry or normal position standards" are not contained in the regulation either.

The only basis for imposing these additional standards is, evidently, in the mind of one or more senior USCIS officials who apparently prepared what has all the earmarks of a standardized "template" RFE that the CSC is using in order to make it as difficult as possible, if not completely impossible, for the petitioner to respond to. This also effectively precludes any likelihood of a fair decision in this type of case.

A fair decision can only be based on the actual regulations, not the California Service Center's making up its own more onerous criteria for a specialty occupation.

To be continued in an upcoming 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 04-27-2014 at 08:30 AM by ImmigrationLawBlogs

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