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H-1B Market Research Analyst Petition Approved After RFE Response. By Roger Algase

Rating: 15 votes, 5.00 average.

My last previous post, on April 25, was the fourth part of a five-part case study showing how some USCIS adjudicators were attempting to downgrade the long-recognized H-1B specialty occupation of Market Research Analyst by arguing that this position does not require a bachelor degree in a specific field of study. In these four posts, I showed that this argument was based on a misunderstanding of the US Department of Labor's Occupational Outlook Handbook's (OOH), description of the educational requirements for this position.

Specifically, some Service Center adjudicators, and even the AAO, in a case that was later overruled by a federal district court decision discussed below, were taking the position that if the OOH listed more than one field of study, or possibly at most two or three, as "related" to a given position, that was equivalent to saying that a bachelor degree in almost any field would qualify someone for the offered H-1B job.

According to this "logic", that would mean that the position in question did not qualify as an H-1B specialty occupation.

This ultra-restrictive interpretation of the H-1B requirements might work for a few traditional professions, such as doctors, lawyers, accountants and engineers, but it could rule out a large number of occupations which have been recognized as H-1B specialties for more than two decades, because, many, or even most, of the bachelor-degree level occupations listed in the OOH have several related fields of study associated with them, not just one or two or three.

The result of the above narrow interpretation could be a drastic reduction in the number of offered positions that could qualify for H-1B approval.

One would hope that, despite the understandable zeal of some USCIS adjudicators or higher officials to make sure that not even one unqualified person is approved for H-1B employment, this type of reasoning will not be used in the future as a standard for deciding H-1B petitions!

In my previous posts, I also discussed an RFE that I had received from the California Service Center in a Market Research Analyst case which vigorously contended that since there are several fields of study listed in the OOH as related to the duties of this position (such as business, economics, communications, statistics, etc.), not just one or two, the petition should be denied unless the petitioner could show that there were highly complex and unusual requirements for this particular job which could distinguish it from the "ordinary" Market Research Analyst position.

In my response, I argued that even though there were distinguishing features in the particular position at issue, based on the size and nature of the petitioner's business, the RFE's presumption that a "typical" Market Research Analyst position did not not normally require a specialty bachelor degree was based on a misunderstanding of the OOH, which makes clear that this position requires, not just any bachelor degree, but one in a field related to Market Research.

I also cited the recent federal district court decision in Residential Finance Corporation v. USCIS, Case No. 2:12-cv-00008 (S.D. Ohio, Eastern Division, March 12, 2012). In this case, the AAO had denied an H-1B petition for a Market Research Analyst because more than one field of study was related to this position. In reversing this decision, the District Court held:

"Plaintiff [the H-1B petitioner] provided evidence that it required a baccalaureate degree for this position, and there is no apparent requirement that the specialized study need be in a single academic discipline as a opposed to a specialized course of study in specific business specialties...The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors." (Italics added.)

I am pleased to report that my client's H-1B petition was finally approved by the California Service Center. Previously, I had also received two similar, if less strongly worded, RFE's from the Vermont Service center in Market Research Analyst cases, indicating that the restrictive interpretation I have mentioned may have been adopted as USCIS policy at a higher level. not just limited to adjudicators at a particular Service Center.

One of these VSC petitions was also ultimately approved, and the other was withdrawn because the beneficiary had changed jobs and was no longer working for that petitioner.

The above decisions illustrate the importance of challenging unreasonable USCIS interpretations of the regulations in all cases, not just those involving H-1B positions.

In the specific H-1B context, these cases also show that in choosing and describing the requirements for any H-1B position (since USCIS is not bound just by the job title itself), it is important to read the OOH carefully to make sure that that a bachelor degree in one or more related fields of study is listed as a normal requirement for the position in question.
________________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment based immigration law for more than 30 years. His practice is focused on H-1B and O-1 work visas, and green cards through labor certification (PERM) and extraordinary ability (EB-1). His email is address is algaselex@gmail.com

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Updated 09-03-2014 at 03:26 PM by ImmigrationLawBlogs

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