Tag Archive for: H-1B Denials

Cyrus Mehta

Ethical Dimensions to Federal Court Litigation in Immigration Matters

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In light of the higher possibility of denials of routine H-1B and L-1 petitions, immigration lawyers may want to consider stepping out of their comfort zones. They should consider thinking about representing the client beyond the motion to reopen or appeal to the Appeals Administrative Office (AAO) in the event of a denial. Seeking judicial review of a denial under the Administrative Procedures Act is a very viable route to challenge a denial. Immigration lawyers may wish to structure the engagement to contemplate federal court action too, and also discuss this possibility with clients at the very outset. Sure enough, not all lawyers, especially business immigration lawyers, may wish to become federal court litigators. Even if they do not wish to do so, they must still provide that option to the client and be willing to refer the federal court matter to another firm.

Before representing a client in federal court, immigration lawyers must be mindful of some key ethical rules, which will be discussed in greater detail below: ABA Model Rule 1.1 – a lawyer must provide competent representation. ABA Model Rule 1.2(a) – a lawyer shall abide by client’s decisions concerning the objectives of representation, and shall consult with client as to means by which they are pursued. ABA Model Rule 1.2(c) – a lawyer may limit the scope of the representation.  ABA Model Rule 1.3 – a lawyer shall act with reasonable diligence and promptness in representing a client.  ABA Model Rule 1.4 – lawyer is obligated to communicate with client with respect to which the client’s informed consent is required (e.g. lawyer must communicate pros and cons of administrative v. judicial review). ABA Model Rule 1.7 – a lawyer may represent two clients even if there is a conflict of interest if the lawyer reasonably believes that he can provide competent and diligent representation to both affected parties.

Immigration lawyers should have federal court litigation in their sights at the very outset of the representation as it is possible to altogether bypass the AAO upon denial and seek review in federal court.  Under Darby v. Cisneros, 509 U.S. 137 (1993),  exhaustion of administrative remedies is not required when the agency’s regulation does not mandate it, which is the case with AAO appeals. Still, judicial review may not always be the optimum strategy. If the administrative record is not adequately developed, then seeking administrative review may also allow the lawyer to supplement the record on behalf of the client. The lawyer must competently advise on the pros and cons of seeking judicial review over administrative review, which has been addressed in Administrative Review Versus Judicial Review When an Employment-based Petition is Denied. The lawyer may then proceed based on the client’s wishes, and in immigration cases there will generally be two clients, after obtaining informed consent.

The immigration lawyer normally undertakes dual representation of the employer and the employee. Representing both employer and employee is permissible so long as the goals are aligned, which they normally are in the pursuit of an H-1B or L-1 petition by the employer on behalf of the foreign national employee. Under ABA Model Rule 1.7, even if there is a potential for conflict of interest, lawyers may represent both client so long as they provide competent and diligent representation to both. The risk for conflict may become more acute after a denial when one client may wish to seek judicial review while the other client doesn’t. The lawyer must be able to manage such a conflict or withdraw from the representation of both clients.

Lawyers should objectively evaluate the pros and cons of federal court litigation with their clients. They must adequately communicate with the client, in accordance with ABA Model Rule 1.4, so that the client can give informed consent regarding whether to litigate in federal court or not. Most employer clients are hesitant to litigate because they may fear government retaliation. The lawyer should assure the client that the government does not have a policy of retaliating if the employer chooses to litigate. An employer may also be dissuaded from litigating because of potential adverse publicity. If the employer is gun shy about litigating, and the employee desires to litigate, a lawyer can resolve the conflict by having the beneficiary as plaintiff so long as the employer supports litigation and keeps the job open. Of course, the lawyer must research the case law in the circuit regarding whether the beneficiary can serve as a plaintiff and also  be prepared to face more resistance from the government if the beneficiary as opposed to the employer is the plaintiff.

One aspect of managing conflicts at the time of federal court litigation is determining who can pay fees involved in litigation?  As noted, there are times when the foreign national beneficiary may wish to sue while the employer takes a back seat. In such cases, the employee wishes to pay the fee rather than the employer. As the APA potentially gives the beneficiary standing to seek review over a denied labor certification and H-1B, fee restricting rules such as 20 CFR 656.12(b) (concerning labor certifications)  and 20 CFR 655.731(c)(9)(ii) (concerning H-1Bs) cannot thwart the foreign national’s right under the APA to challenge the denial. Therefore, it may arguably not be a violation of these rules prohibiting the foreign national from paying the fee in the context of a law suit filed under the APA. This has been addressed in  Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B or Labor Certification Denial?

Lawyers may also claim fees under the Equal Access Justice Act, which may give them the incentive to take on a case on behalf of a client who may not be able to afford to pay the fees. The EAJA authorizes the payment of attorney’s fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation “was substantially justified.” The engagement agreement should be able to address how fees under the EAJA will be addressed. A lawyer may have the client pay all the fees and then let the client get the EAJA fees if victorious in the action. Alternatively, the lawyer may charge no fee or a low fee, but the client agrees to give the EAJA fee to the lawyer. It must be clearly indicated in the engagement agreement when the lawyer will claim the EAJA fee and when lawyer will give back EAJA fee to client.

Here are some other nuggets regarding the ethics of financing litigation that might be useful for immigration lawyers. Pursuant to DC Bar Ethics Opinion 375  lawyers are generally free to represent clients who pay for legal services through crowdfunding. However, the lawyer must be mindful of the source of the funds because of the heightened risk in the event that the funds are obtained through illegal means.  The lawyer may also wish to counsel the client about the risk of sharing confidential information to third parties funding the litigation. But when the lawyer directs the crowdfunding, the lawyer must be aware of the ethical rules relating to payment of fees by third parties, management of client funds, communications with third parties, and fee agreements. Also note that under ABA Model Rule 1.8(e), a lawyer is prohibited from providing financial assistance to a client in contemplation of pending or contemplated litigation, except with respect to advancing court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter. With respect to indigent clients, lawyers may pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

The lawyer must be mindful of ABA Model Rule 1.1 regarding competence. If a lawyer knows that she is not competent to handle a federal litigation matter, she should associate with a lawyer who is competent to handle it. Rule 1.1, however, does not preclude new lawyers from handling a matter for the first time provided they become competent. Comment 2 to ABA Model Rule 1.1 is worth noting:

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

Moreover, part of being a competent lawyer is to also be prepared to carry forward federal court litigation to completion. While most lawyers have been able to reverse an adverse decision through settlement with the Assistant US Attorney, some have had to be litigated to conclusion. While there are many reported cases of a district court judge overturning a denial, many district courts have also upheld USCIS denials. The lawyer should not take the position that because she is comfortable with only seeking administrative review with the AAO, she will not litigate, consider litigation or provide any advice regarding litigation. While a lawyer may stay within his comfort zone by not litigating, and can also limit representation under ABA Model Rule1.2(c), it is incumbent upon this lawyer to recommend client(s) to another counsel who will be able to litigate the matter.

The lawyer may also have to get pro hac vice admission or get admitted in new jurisdiction. The lawyer must then not subsequently become administratively ineligible by failing to pay annual fees, either intentionally or inadvertently,  or complying with CLE requirements in that jurisdiction.  The lawyer can be sanctioned under 8 CFR 1003.102(f) for knowingly misstating his/her qualifications on a G-28 or EOIR 27/28.

There are other considerations prior to undertaking federal court litigation.  The lawyer must check whether underlying basis of denied H-1B petition still exists. Has the job site changed so that the  LCA is no longer valid (as one cannot do a Simeio amendment on a denied H-1B)? Is there still a job offer? Otherwise, the lawyer could be sanctioned under ABA Model Rule 3.1, non-meritorious claims, or Rule 11of Federal Rules of Civil Procedure (FRCP) if the factual contentions in a pleading do not have evidentiary support. However, if the facts change after litigation has commenced, such as the loss of the job, it may still be ethical to proceed with litigation as a successful outcome can impact positively impact the ability of the beneficiary to change status or to port to a new employer.

Finally, since immigration lawyers started filing APA actions in the past two years, most of the cases have settled favorably. After filing a complaint in federal district court, the case has often settled through the USCIS reopening the case and outright reversing the denial or through the issuance of another Request for Evidence.  Still, it is not prudent to undertake federal court action with the objective to solely to settle as FRCP 42 only allows withdrawal if defendant has not filed any pleading. Otherwise, an action may be dismissed upon the plaintiff’s request only by court order and on terms that the court considers proper. The lawyer must manage the expectations of the client in this regard, and charge appropriate fees to cover the entire duration of the court action rather than just the first phase in the hope that the case will settle.

While undertaking judicial review of denials, immigration lawyers must not just learn new rules, skills and procedures, but must also be cognizant of the ethical dimensions. This blog provides some pointers.

 

Cyrus Mehta

Don’t Always Suck Up to Buy American Hire American

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President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings.  BAHA has however been deployed to make life harder for legal immigrants who do their best to remain in status while pursuing lawful permanent residence. They also benefit the United States as their employers need them and follow the law in filing appropriate visa applications.   For example, H-1B visa renewals that were routinely approved previously are now being denied in the name of BAHA. The USCIS has recently released new H-1B data that reflects an increase in requests for evidence and denials in 2019, again pursuant to BAHA.

BAHA aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. BAHA highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries. BAHA, however, is merely an executive order. It should not take precedence over the Immigration and Nationality Act.  Still, the USCIS uses BAHA as justification to refuse otherwise approvable H-1B petitions. Some of these H-1B denials are absurd. The author recently heard that the USCIS denied a petition filed on behalf of a pathologist by an established pharmaceutical company.

Following BAHA, the State Department also swiftly made changes to the Foreign Affairs Manual regarding guiding consular officials in issuing nonimmigrant H, L, O, P and E visas. The changes relating to H and L visas are reproduced below as examples:

9 FAM 402.10-2 Overview of H Visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2 Overview of L visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

Based on these FAM changes, here have been several anecdotal reports of consular officers asking visa applicants as to how their employment will further BAHA by creating jobs for American workers or not depressing their wages. Some have been questioned whether their employers first tried to hire American workers even when such recruitment is not required under the specific visa. Such questioning is entirely inappropriate and not consistent with the law under which the visa petition was approved.

For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under BAHA, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. BAHA was not in existence when Congress created the L, E, H-1B or O visa provisions in the INA. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a) (15) (L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so. Even with H-1B visas, unless an employer is a dependent employer, there is no obligation on the part of the employer to recruit for US workers. Regarding wages too, if an employer is legitimately hiring a worker for an entry level position in an H-1B specialty occupation, the employer is under no obligation under the law to pay the highest level wage.

As a result of all visa applications being viewed through the prism of BAHA, attorneys feel the need to advise their clients to answer questions of consular officials relating to BAHA. Some attorney are also indicating in H-1B and other visa petitions (both nonimmigrant and immigrant) as to how the beneficiary will further BAHA. While it may be tempting for us as attorneys to invoke BAHA as if it is a deity with magical powers, it may also lead us down a rabbit hole. Apart from not being law and only an executive order, BAHA sets no standard for the attorney to guide the client. If the attorney indicates that the H-1B worker’s entry into the US will create more jobs, there is no metric to establish this. The only metric we have under current immigration law include specific labor market tests under the permanent labor certification program, the H-2A and H-2B programs and the H-1B program for dependent employers or willful violators. These rigid criteria have not been followed in other visa petitions such as an L-1 or an H-1B (for a non-dependent employer or an employer who is not a willful violator), and they do not need to.

If a client is asked inappropriately regarding whether the position will impact American workers or not, the client should be prepared to answer that the visa petition met all the criteria under the statutory and regulatory provisions, and was approved accordingly. There is no need for the client, or the attorney, to improvise on why the applicant’s employment in the US will result in more jobs for US workers.  Advancing the client’s cause under BAHA will lead to more questions from the adjudicating official, which could be arbitrary and cannot he held up to an objective legal standard.

This is not to say that an applicant should never make a BAHA argument in his or her favor. There may be some instances where the argument in favor of BAHA is clear cut or the official asks specific questions where an answer may be readily available.  The purpose of this blog is to caution against the talismanic invocation of BAHA, when there is no metric or standard, under which an adjudicating official can be held up to. BAHA has also been used most effectively to deny immigration benefits. If an official infuses the adjudication process with BAHA, resulting in a denial, it could be grounds for appeal. Even at the consular level, which is generally immune from administrative or judicial review, a denial of a visa application based on BAHA would potentially allow the applicant to seek an advisory opinion from the Visa Office if the denial was contrary to the statutory provision.  If the applicant already conceded that the official could ask for extraneous evidence under BAHA and provided it, it may be harder to appeal such a denial. Therefore, in the opinion of this author, it is best to not always suck up to BAHA.

 

Cyrus Mehta

New Mutant H-1B Gene – Undifferentiated Engineering Degrees

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It has become harder to obtain an approval of an H-1B visa petition under the Trump administration. The USCIS insists that an occupation must require a degree in a specific specialty. It constantly moves the goalposts to deny H-1B petitions, even if the occupation was previously readily approvable. A position that requires an engineering degree may now not be so readily approvable for H-1B classification.

Take for example the position of Operations Research Analyst. The Occupational Outlook Handbook, which the USCIS slavishly relies upon, describes the training and educational requirements for an Operations Research Analyst as follows:

“Many entry-level positions are available for those with a bachelor’s degree. However, some employers may prefer to hire applicants with a master’s degree.

Because operations research is based on quantitative analysis, students need extensive coursework in mathematics. Courses include statistics, calculus, and linear algebra. Coursework in computer science is important because analysts rely on advanced statistical and database software to analyze and model data. Courses in other areas, such as engineering, economics, and political science, are useful because operations research is a multidisciplinary field with a wide variety of applications. “

Winning an H-1B for an Operations Research Analyst should be a no brainer. It is clear that a specialized degree is required to enter the field. As the operations research is based on quantitative analysis, an engineering degree can provide the knowledge base for a qualified candidate to enter the field. The USCIS then plays “gotcha” when an operations research position requires an engineering degrees or because of the reference to an engineering degree in the OOH. This is the verbiage that the USCIS includes in its decisions to deny an occupation that may require an engineering degree:

“According to publicly available Internet resources, there are approximately forty (40) different types of engineering degrees ranging in specialties to include but not limited to Mechanical, Ceramics, Civil, Electrical, Environmental, Agricultural, Marine, to Electronics Engineering. As such, it can be determines that the OOH does not indicate that a baccalaureate degree in a specific field of study is the minimum educational requirement for Operations Research Analysts as needed in order to qualify the proffered position as a specialty occupation.”

Till now, it was presumed that an occupation that requires an engineering degree should qualify for H-1B classification. Although there are many types of engineering disciplines, the basic quantitative skills gained in an engineering degree program should equip the worker to perform the technical duties of a specialty occupation whether it is for the position of Operations Research Analyst, Software Developer or Computer Systems Analyst.

Even if the OOH does not refer to an engineering degree, the USCIS tends to object if the employer requires an engineering degree to qualify for the position. Thus, the OOH, with respect to Software Developers, states that “[s]oftware developers usually have a bachelor’s degree in computer science and strong computer programming skills.” But if the prospective H-1B beneficiary qualifies with an engineering degree rather than a degree in computer science, the USCIS will use that to either issue a request for evidence or deny the petition.

It seems that the engineering degree is suffering the same fate as the business degree. Requiring a general purpose business degree without more has never fared too well. The H-1B petition filed by an upscale Thai restaurant that required its manager to have a general purpose business degree was shot down. See e.g. Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir 2007). Still, the Appeals Administrative Office in a recent non-precedential decision, Matter of C-B-S- Inc., ID# 1308199 (AAO Sept. 6, 2018), has stated that “a bachelor’s or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation.”  The same logic should apply more so for an engineering degree. In fact, it can more be easily shown that the technical knowledge gained from an engineering degree, whether it is electrical or mechanical, ought to qualify the H-1B worker to be a software developer or an operations research analyst.

Both petitioners and beneficiaries should not take these denials lying down. As explained in a prior blog, such denials are in contravention to how a specialty occupation is defined under the INA. Under INA § 214(i)(1) a “specialty occupation” is  defined as an occupation that requires

  • Theoretical and practical application of a body of highly specialized knowledge, and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

It is not so obvious from a reading of INA 214(i)(1) that only occupations such as law or medicine would qualify for an H-1B visa on the assumption that only degrees  in law or medicine would allow entry into the occupation. Even in law, a law degree may not always be required. One can qualify to take the bar exam in some states through an apprenticeship in a law office. A physician may also qualify through either a Doctor of Medicine (MD) degree or through a Doctor of Osteopathic Medicine (DO). If the USCIS reads INA 214(i)(1) as applying to an occupation that requires a degree in one single specialty, as it is tending to with engineering degrees, then no occupation will qualify for the H-1B visa.  This is clearly not what Congress intended.   INA § 214(i)(1) ought to be read more broadly.

The USCIS should revert to a more commonsensical reading of the H-1B visa provision. In Tapis International v INS, 94 F. Supp. 2d 172, the court held that a “position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass …….various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.” The USCIS should be forced to adhere to holding in Tapis International.

Even if an employer requires a degree in engineering, in conjunction with a degree in computer science, it is atrocious for the USCIS to deny the H-1B petition because the engineering degree cannot qualify the worker for H-1B classification. The USCIS cannot categorically deny H-1B petitions because there exist 40 disciplines within engineering without considering the employer’s justification for such disciplines and how the prospective H-1B worker qualifies for the position. The USCIS must review this requirement in the context of the employer’s business. If a small mom and pop general retail store requires an engineering degree, the USICIS would be justified in looking at such an H-1B petition with skepticism.   On the other hand, a company that requires an analyst to design and develop a sophisticated artificial intelligence marketing tool should be able to justify degrees in computer science, engineering, math, business analysis or marketing. Each of these fields, and the specific coursework that was taken, would potentially equip an H-1B beneficiary to perform different aspects of the duties of the position.  An employer should also not be expected to specify the engineering field or limit the degree requirement to one specialty. The employer can have a general engineering degree requirement, and then assert in each petition, why the H-1B worker through the knowledge gained in his or her engineering degree program, whether it is electronics, civil or ceramic, equips the worker to perform the duties of the specialty occupation.

If the mutant H-1B gene afflicting engineering degrees is not excised, what is there to stop the USCIS from asserting the same logic to degrees in law or medicine? Could the USCIS assert that a JD degree or equivalent foreign law degree requirement is so general purpose that the employer must demonstrate the specialization within the law degree that would equip the H-1B worker to perform the duties of the position of a corporate attorney? Of course, that would make no sense. The knowledge developed from a law degree allows the prospective attorney to perform his or her duties in any legal specialization, be it corporate, tax or immigration law. This should be the case even if the attorney never took a course in corporate or immigration law in law school.     The same logic should apply to the knowledge developed in an engineering degree that would equip the H-1B worker to perform the specialized duties of a software developer position or an operations research position. If both positions rely on quantitative skills, those skills could be gained through an engineering degree program whether it was in civil or aeronautical engineering.   If the USCIS wholesale turns down H-1B petitions for positions that require an engineering degree, an employer should seek to challenge the denials in federal court, which like aggressive chemo therapy could potentially place the cancer in remission.

 

Cora-Ann Pestaina

The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions

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USCIS’ current ferocious attack on H-1B petitions has been discussed here, here and here. Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every logical, rational, legal argument presented in response to one of the USCIS’ Requests for Evidence (RFE) but that it appears that no argument is too baseless for USCIS to present when issuing a denial of an H-1B petition. Case in point is USCIS’ rejections of expert opinions presented to bolster an employer’s argument that an H-1B position is classifiable as a specialty occupation.

As a reminder, in order to hire a foreign worker in a specialty occupation under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A)

After USCIS issued its first wave of attack on H-1B petitions filed and selected under the FY 2018 H-1B visa lottery claiming that any position where the H-1B worker would be paid an entry-level (Level 1) wage did not appear to be a specialty occupation, previously blogged about here, this groundless claim was met with mass pushback. Without a legal leg to stand on, USCIS has largely circumvented the issue of the wage levels (although still denying some petitions on that basis) by finding ways to deny the H-1B petition on a claim that the proffered H-1B position simply fails to qualify under any of the specialty occupation prongs listed in 8 CFR 214.2(h)(4)(iii)(A). In doing so, USCIS has been rejecting expert opinion letters written by qualified experts expounding on how and why the proffered position qualifies as a specialty occupation. The arguments presented in USCIS’ rejection of these expert opinions are quite maddening.

In an effort to demonstrate that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position under prongs 1, 2 and/or 4 of 8 CFR 214.2(h)(4)(iii)(A), H-1B employers quite frequently solicit the opinion of an expert. This expert is usually a college professor with a rich background in the specific specialty area, who is well-experienced in reviewing and evaluating academic and experience qualifications; and who has had an opportunity to observe and compare the abilities of numerous talented students in the specialty fields, and to analyze the ways in which the educational backgrounds of these students have been applied in the professional industry. Typically, this expert has also offered opinions and analyses of the academic and professional credentials of candidates in connection with university admissions and employment positions. The expert is usually also someone who has been engaged in the preparation of equivalency evaluations and position evaluations, primarily for use with connection to immigration-related procedures, for many years, and has prepared hundreds, sometimes over 1,000 such evaluations. Accordingly, the expert is typically someone well positioned to opine on whether or not a proffered position, in his/her particular specialty field, is a specialty occupation. Pre-Trump, USCIS gave such expert opinions the respect they deserved.

However, USCIS now seeks to discredit these opinions and what’s most frustrating are the rejections reasons presented. Here are a few that this author has had the opportunity to review:

  • The professor did not base his opinion on any objective evidence but instead restated the proffered position as provided by the employer;
  • The professor’s opinion is not supported by citations of research material;
  • The professor did not rely on a specific study of the employer’s organization. There is no evidence that the professor knew more about the proffered position than what the employer provided. There is no indication that the professor visited the employer’s business, observed its employees, interviewed them about the nature of their work, or documented the knowledge that they apply to their jobs.
  • The professor’s opinion does not relate the professor’s conclusions to specific, concrete aspects of the employer’s business operations so as to demonstrate a sound factual basis for the professor’s conclusions about the educational requirements for the proffered position.
  • Given the professor’s limited review of the duties of the position, based largely on the job descriptions furnished by you, USCIS gives less weight to the professor’s opinion.
  • It was held in Matter of Caron International, Inc. 19 I&N Dec. 791 (Comm 1988) that legacy INS, now USCIS, may in its discretion use advisory opinion statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information, or is in any way questionable, USCIS is not required to accept or may give less weight to that evidence.

With some of the reasons for rejection of an expert opinion, USCIS doesn’t make it clear whether they’re expressing doubt as to whether the duties of the proffered position will actually be performed as stated, i.e. whether they think the expert is relying on facts they find not credible, or whether they’re challenging the professor’s overall credibility as an expert. In any event, whatever standard is presently being used to reject the expert opinions, it is not the preponderance of the evidence standard.

Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings) . . .

The “preponderance of the evidence” standard requires that the evidence demonstrate that the applicant’s claim is “probably true,” where the determination of “truth” is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that “[t]ruth is to be determined not by the quantity of evidence alone but by its quality.” Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.  See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Matter of Chawathe, A74 254 994 (Admin. Appeals Ofc. / USCIS Adopted Decision, Jan. 11, 2006).

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that their claim is true. USCIS’ recent denials rejecting expert opinions show that this standard is surely not being applied. As an expert, a professor may review the job duties of the proffered position and formulate his opinion based on his expert knowledge of the specialty field, which knowledge would have been explained at length in his opinion letter. The expert need not conduct a specific study of an employer’s organization. He need not visit an employer’s business or observe its employees. His expertise is typically set forth in his opinion letter and he need not provide the USCIS with copies or citations of research material.

Under the Federal Rules of Evidence, which are not binding on H-1B adjudications but may be a useful analogy, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Federal Rules of Evidence (FRE) Rule 702, https://www.law.cornell.edu/rules/fre/rule_702. Moreover, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FRE Rule 703 https://www.law.cornell.edu/rules/fre/rule_703. Thus, even under the Federal Rules of Evidence, first-hand knowledge is not necessarily required even if the expert were testifying in federal court!  An expert can legitimately have an opinion about “facts or data in the case that the expert has been made aware of”, (such as the job duties of a proffered H-1B petition) not merely those which he has “personally observed”.  Immigration proceedings don’t follow the Federal Rules of Evidence, but rather the rules of evidence ought to be more relaxed, not stricter!

So why is USCIS suddenly stretching to find fault with these expert opinions? The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the Administrative Appeals Office (AAO) held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue. In that case, the AAO specifically pointed out that the director did not question the credentials of the experts, take issue with their knowledge or otherwise find reason to doubt the veracity of their testimony.  But when it comes to the denials of H-1B petitions, it is all too easy to claim doubt, to take issue with the expert’s knowledge and to coolly dismiss the expert opinion.

So are expert opinions still worth it? I would argue that they are. First, H-1B adjudications are still haphazard. There is always a chance that the opinion may be accepted. With the submission of any expert opinion it might be beneficial to include an argument on why the opinion ought to be accepted reminding USCIS of the applicable standard. While in most cases it may not benefit the H-1B employer or beneficiary in the short run, H-1B practitioners must continue to fight back. We cannot go gentle into that good night. A rejection of the expert opinion would lead to a conclusion that USCIS is setting a standard for expert opinions that is even higher than the Federal Rules of Evidence and that would contravene the applicable preponderance of the evidence standard. These denials need to be appealed to the AAO. If the AAO denies, the denial can also be challenged in federal court. In Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1180-81 (C.D. Cal. 2006) the federal court reversed the Administrative Appeals Office (AAO) where it failed to address expert affidavits and other evidence that a human resource manager position was sufficiently complex and rejected the H-1B because it was a small company.  The court held that the AAO abused its discretion when it did not take into account the expert opinion evidence presented by the petitioner to prove that the position required a broad range of skills acquired through a four-year university degree. It is only through continued pushback that these erroneous denials will come to an end.

Cyrus Mehta

Stopping H-1B Carnage

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In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.”

To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program.  The H-1B visa has become the visible symbol of an immigration program that is thought to no longer protect American jobs and favors the foreign worker. Whether this is factually true is beside the point – it is good for optics and in furtherance of Trump’s campaign slogan of America First.   It does not matter that H-1B visas help American firms remain globally competitive, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. The H-1B visa is the low hanging fruit that the administration uses for target practice by shooting out a Request for Evidence (RFE), which is often a prelude to the denial.

Consistent with his view of American First, on April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order No. 13788. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO has hit the H-1B visa program the hardest. It has been seen in the increased number of Requests for Evidence (RFEs) challenging the paying of Level 1 wages, even though employers have legitimately offered positions to entry-level workers under the H-1B visa program. Despite the wage challenges, a well-crafted response can overcome the suspicion that an entry-level 1 wage cannot be sustained under the H-1B visa. Anecdotal evidence suggests that the USCIS is approving cases after a level 1 wage challenge, although at the same time the USCIS challenges  whether the occupation qualifies for H-1B classification. Therefore, winning the level 1 wage challenge may be a pyrrhic victory if the USCIS reads out the occupation from the H-1B law. It is necessary to not just overcome the level 1 wage challenge, but also the challenge as to whether the occupation in question qualifies for H-1B visa classification.

At first, the Trump administration focused its attack on programmers. On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part on computer programmers in the DOL’s Occupational Outlook Handbook (OOH) that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

It has now become evident that USCIS is not just challenging programmers, but relying on the OOH to attack other computer occupations, especially at the California Service Center. It does not matter whether the employer is paying a level 1 wage or higher.  For example, when challenging a Computer Systems Analyst, the USCIS uses the OOH as a basis to issue the RFE and then the denial. USCIS recognizes, in many unpublished AAO decisions, “OOH as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.” When justifying its challenge to an occupation, the USCIS cites the section in the OOH relating to education and training. For example, with respect to Computer Systems Analysts, it reproduces the following extract from the OOH (often underlining the parts USCIS thinks are relevant to support the decision):

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.

Education

Most computer systems analysts have a bachelor’s degree in a computer-related field. Because computer systems analysts are also heavily involved in the business side of a company, it may be helpful to take business courses or major in management information systems (MIS).

Some employers prefer applicants who have a Master of Business Administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate.

Although many analysts have technical degrees, such a degree is not always a requirement. Many systems analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Some analysts have an associate’s degree and experience in a related occupation.

Many systems analysts continue to take classes throughout their careers so that they can learn about new and innovative technologies and keep their skills competitive. Technological advances come so rapidly in the computer field that continual study is necessary to remain competitive.

Systems analysts must also understand the business field they are working in. For example, a hospital may want an analyst with a background or coursework in health management. An analyst working for a bank may need to understand finance.

After citing the OOH section, the USCIS typically asserts that although a bachelor’s degree is often sufficient for computer systems analyst position, the OOH does not specify a specific educational background required for this occupation. USCIS then goes on to conclude that as the requirements appear to vary by employer as to what course of study might be appropriate or preferred, a Computer Systems Analyst cannot qualify for the H-1B visa.

A decision based on the OOH ought to be challenged. It is not appropriate to treat the OOH as the gospel truth, without regard to the evidence that was submitted by the petitioning employer, and to twist the meaning of the words in order to justify a denial.

The regulations define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations go onto provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation (and if the USCIS can underline what it believes is relevant, so will this author!):

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  See 8 CFR §214.2(h)(4)(iii)(A).

It is clear from the plain meaning of these regulations that there is no requirement that a bachelor’s degree is always a requirement. Nowhere in the regulation does it require that a bachelor’s degree must “always” be a minimum requirement.  In fact, if the OOH uses terms such as “most” or “typically” or “common”, that should meet the requirement of the regulations.

USCIS also selectively cites portions from the OOH, and conveniently neglects to cite this concluding important paragraph in the education and training part of Computer Systems Analysts:

Systems analysts must understand the business field they are working in. For example, a hospital may want an analyst with a thorough understanding of health plans and programs such as Medicare and Medicaid, and an analyst working for a bank may need to understand finance. Having knowledge of their industry helps systems analysts communicate with managers to determine the role of the information technology (IT) systems in an organization.

The employer may rely on this section in the OOH to demonstrate that the computer professional is working in the niche business field, which could be health care or computer security. Therefore, the systems analyst would also need to have a thorough understanding of the business field, such as finance, besides being able to perform the generic duties of a systems analyst. By emphasizing the need for the computer systems analyst to be performing in a niche business area, the employer may have more of a legal justification for requiring a specialized degree in the field. When relying on prong 4 under 8 CFR §214.2(h)(4)(iii)(A), it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex. It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

The AAO in an unpublished decision in 2006 reversed a denial of an H-1B petition that was filed by an action film entertainment company on behalf of a foreign national who would be employed as a Film and Video Director. Although this is not a precedential decision, it can be used as a template to respond to a challenge when the USCIS relies on the OOH to deny that a specialty occupation is classifiable under the H-1B visa. In reversing the denial of the H-1B petition by the California Service Center, the AAO listed in great detail the foreign national’s proposed duties as Film and Video Director. The duties included interpreting the screenplay, communicating with actors and camera personnel, development of script with the producer, selecting locations, work out all camera angles, directing the actors and directing performance of all on-camera talent, to name a few.

The AAO concluded that despite the fact that the USCIS made reference to the OOH not mentioning that a baccalaureate education in a specific specialty is normally the minimum for entry into such positions, this position was sufficiently complex to require a bachelor’s degree. The AAO, therefore, relied on the 4th prong of the regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), analyzing that the position was so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The relevant extract from the AAO’s decision is worth noting:

Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications. Motion- capture is an area of expertise that requires the use of specialized equipment and personnel. Further, the beneficiary is involved in virtually all areas of project production and development, including the editing of the final project. Under these circumstances, the petitioner has established the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)

The AAO’s rejection of the official job description in the OOH is salutary, and petitioners should continue to convince the USCIS, and the AAO if there an appeal, that completely relying on the OOH is inappropriate, and it is also necessary to consider the complexity of the duties described by the petitioner in the H-1B petition. The AAO decision is striking because the OOH entry for the occupation of film and video director was more equivocal than computer systems analyst with respect to employers requiring a bachelor’s degree in the occupation. Petitioning employers should take great pains in fleshing out the duties of the position when filing an H-1B petition in showing that they are different from the standardized duties in the OOH. In the event that the OOH does not state that the occupation in question always requires a bachelor’s degree, it is imperative that the employer be able to justify that the position is complex and specialized to require a bachelor’s degree. It would also be helpful for the employer to show that it has hired others in the past with the same degree requirements, provide industry articles and other information about the minimum entry requirements into these occupations as well as descriptions of US college programs leading to degrees in the specialty occupation.

If an industry or occupation does not always require a bachelor’s degree, as confirmed in the OOH, and the employer is unable to establish that the position is more specialized and complex than the industry standard, the H-1B petition may fail. For instance, an H-1B petition filed on behalf of a violinist by a symphony orchestra did not succeed as the employer was unable to establish that the position always, rather than usually, required a bachelor’s degree. See Louisiana Philharmonic Orchestra v. INS, 44 F.Supp, 2d 800 (E.D. Lou. 1999); denial upheld after remand 2000 U.S. Dist. LEXIS 3331 (Mar. 18, 2000). Therefore, it is important to demonstrate that the duties are more specialized and complex than the norm, while keeping in mind that the argument should also be consistent with the fact that an entry-level wage, if that is the case, can also justify such duties.  Also, a “specific specialty” does not mean a degree in only one field.  A specialty occupation may justify several common or related degree fields.  If the OOH adds a few degree fields to a description, that does not mean than the position no longer qualifies for H-1B classification. Even when the minimum requirements are in two disparate fields, such as philosophy and engineering, then, as stated in an unpublished AAO decision, the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the particular position such that the ‘body of highly specialized knowledge’ is essentially an amalgamation of these different specialties.”

In the event that the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office (AAO). Once the appeal is filed, the USCIS Service Center which denied the petition has 45 days within which to conduct an initial field review and decide whether to treat the appeal as a motion to reopen and/or reconsider and approve the petition; or forward the appeal and the related record of proceedings to the AAO. If the AAO denies, the denial can also be challenged in federal court. If USCIS seeks to reinterpret H-1B provisions in light of the Buy American Hire American EO resulting in denials, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. There is nothing in the law or the regulations that clearly indicate that the government can wholesale deny H-1B classification for an occupation just because the OOH indicates that most employers, rather than all employers, require a bachelor’s degree. Similarly, there is nothing in the INA that suggests that an H-1B visa petition cannot be approved solely because the prospective H-1B worker will be paid an entry level wage. Indeed, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. The Trump administration cannot read out entire occupations from the H-1B law based on slavish reliance of the OOH. If the AAO does not relent, then perhaps a federal court will be able to stop the H-1B carnage.

Michelle S. Velasco

CHALLENGES IN FILING H-1B VISA PETITIONS FOR UNCOMMON SPECIALTY OCCUPATIONS

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The U.S. Department of Labor (DOL) regularly releases statistics on the H1B – the top occupations and the top employers that file Labor Condition Applications (LCA) for these nonimmigrant worker petitions. As of the Fourth Quarter of FY 2014, six of the top ten certified positions were computer-related occupations.  The rest of the positions in the top ten are Accountants/Auditors, Management Analysts, Financial Analysts, and Electronics Engineers who do not work on computers.  Altogether they make up about 77% of all LCAs submitted to the DOL for certification.

The USCIS last released an H-1B report in July 2013 for FY 2012.  USCIS reported that approximately 59.5% of approved H-1B petitions were for computer-related occupations, and the rest of the top five were occupations in architecture, engineering, and surveying; administrative specializations; education; and medicine and health.

But, what of the other H-1B occupations?  Such uncommon H-1B occupations may include food service managers and music managers, among others.  These nontraditional H-1B “specialty occupations” are less often processed by USCIS and often pose a greater challenge for attorneys and their clients because they do not fit neatly with other “specialty occupations” that USCIS officers commonly see.  This is also part of a growing trend where the USCIS is viewing such occupations more skeptically, even if the record contains evidence favoring an approval.  It is helpful here to first define this doozy of a term.

8 CFR 214.2(h)(4) defines “specialty occupation” as one in which:

…requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

To hire a foreign worker under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A)

Practitioners may find that despite efforts to indicate to the USCIS that the complexity and specialized nature of the proffered position meets the definition of an H-1B specialty occupation, the USCIS will nonetheless issue Requests for Evidence (RFEs) or denials. This is because the USCIS is unwilling to issue H-1B approvals for positions that do not are dissimilar to common H-1B occupations, such as computer programmers or analysts, and are unwilling to consider evidence of the complexity of occupations as evidence. RFEs often request information such as:

  • Documentation describing the business, such as business plans, reports, presentations, promotional materials, newspaper articles, website printouts, etc.
  • Detailed description of the proffered position, including approximate percentages of time for each duty that the beneficiary performs
  • Copies of contracts or work orders from every company that will utilize the beneficiary’s services to show the beneficiary will be performing duties of a specialty occupation
  • Documentation of how many other individuals in the employer’s organization are currently or were employed in the same position, along with evidence such as employees’ degrees and evidence of employment in the form of paystubs or tax forms

Yet, despite providing such evidence, the employer may nevertheless, receive a denial of the petition even after carefully responding to an RFE. Attorneys are left scratching their heads at some of the frustrating reasoning posited by USCIS that often ignores regulation and precedent.

One problematic course that USCIS continues to take is overly relying on the DOL’s Occupational Outlook Handbook (OOH) when determining whether a bachelor’s degree is a normal requirement for an occupation.  The OOH may guide the USCIS, but it does not in and of itself define what is a specialty occupation – only the regulations can do this. Moreover, the OOH should not be the only source USCIS should use when determining whether a bachelor’s degree is a normal requirement for a proffered position.  The USCIS should not ignore the employer’s statements and evidence of its normal practice of requiring a bachelor’s degree for a proffered position.   USCIS should analyze the proffered position based on the definition provided in 8 CFR 214.2(h)4)(iii)(A) instead of relying heavily on the OOH.  See Fred 26 Importers, Inc. v. DHS, 445 F. Supp.2d 1174, 1180-81 (C.D. Cal. 2006)(court reversed AAO where it failed to address expert and other evidence and simply asserted that a small company did not require specialized and complex duties); The Button Depot, Inc. v. DHS, 386 F Supp.2d 1140, 1148 (C.D. Cal. 2005)(court reversed AAO decision and found AAO had abused discretion when it applied unrelated regulatory provisions and failed to provide a basis for its conclusion that “it does not agreed with the opinion evidence submitted by the petitioner); Matter of – (AAO unpublished decision, Aug. 15, 2006, WAC 0417253199)(AAO reversed, finding that although OOH does not state a baccalaureate level education is the normal minimum requirement, the duties of the position are so specialized and complex that knowledge required to perform them is usually associated with the attainment of a bachelor’s degree or higher).

Second, the USCIS ignores expert opinions that determine the proffered position is a specialty occupation by virtue of its complex and unique nature.  In Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) the AAO directs the USCIS to examine each piece of evidence for relevance, probative value, and credibility, individually and in the context of the entire record according to the “preponderance of the evidence” standard.  The USCIS may reject an expert opinion letter or give it less weight if it is not in accordance with other information in the record or if it is questionable.  See Matter of Caron Int’l, Inc., 19 I&N Dec. 791, 795 (Comm’r 1988).  However, if “the expert testimony [is] reliable, relevant, and probative as to the specific facts in issue” then the USCIS must not ignore it.  See Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805-806 (AAO 2012).  In Matter of Skirball, the AAO reversed the USCIS’s denial of a P visa petition for a musical group, finding that the USCIS erroneously rejected expert opinion even though it did not question the credentials of the experts who provided opinions, take issue with the experts’ knowledge of the group’s musical skills, or find any reason to doubt the truthfulness of the testimony.  The reasoning in Matter of Skirball must be applied to the adjudication of H-1B nontraditional specialty occupations where often the employer must rely on expert opinion and atypical evidence to support their assertion that the duties of the position are so complex and unique that a bachelor’s degree is required to execute those duties. Thus the USCIS should not ignore or reject expert opinions especially if they are submitted in conjunction with other supporting evidence when the USCIS has no reason to doubt the veracity of the testimony.

Although it may be daunting to file H-1B petitions for nontraditional or uncommon specialty occupations, attorneys can overcome or avoid the USCIS’s sometimes inconsistent and wrong application of the standards in place in 8 CFR 214.2(h)(4)(iii)(A). When preparing the H-1B petition, attorneys should research the occupation thoroughly and have a full understanding of the job duties, the nature of the organization, and the position’s standing within the company. The explanation of the duties should be detailed and, if possible, include the approximate percentage of time spent on each.  Evidence to support the petition should include information about the company, the nature of the industry, the complexity of the position, and proof that the beneficiary has obtained the education and/or experience level required for the position.  There may be times when the proffered position may fall within a category of occupation that the OOH has determined does not normally require a bachelor’s degree to perform. If this is the case, the employer should ensure that the appropriate occupation is used for the LCA and the employer should also consider submitting an expert opinion evaluating both the job duties of the proffered position and the education and experience of the beneficiary. Lastly, the employer may explain how its proffered position is analogous to similar jobs that either the OOH or case law has found to be specialty occupations. If one uses job postings by other employers requiring the same bachelor’s degree, USCIS can discount such evidence if the employers who posted such notices were not similar in size as the H-1B petitioning employer.

Until USCIS properly applies the standards for H-1B specialty occupations determined by the regulations and case law, employers of uncommon or nontraditional H-1B occupations must remain vigilant in their petition filings.  They must keep in mind that when faced with a nontraditional H-1B occupation, the USCIS may look only to the OOH for guidance.  Lastly, attorneys should provide adequate advice and warning regarding the filing of H-1B petitions for such nontraditional occupations and to prepare employers for fickle and nonsensical RFEs. Finally, attorneys must advise their clients that they must be prepared to seek administrative and even judicial review of erroneous denials.