Tag Archive for: Occupational Outlook Handbook

Cyrus Mehta

Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa

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By Cyrus D. Mehta & Kaitlyn Box*

On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran,  which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No. 19-16849, *4.  USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation. Id. at 5-6. USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree”, thereby implying that some individuals employed as computer programmers do not have bachelor’s degrees. Id.

In a prior blog, we have discussed the outcome of the Innova Solutions, Inc. v. Baran case at the District Court level. The U.S. District Court for the Northern District of California heard the case in 2018, and held that the position of Programming Analyst, categorized under the OOH’s Computer Programmer classification, did not qualify as a specialty occupation because the OOH’s description for Computer Programmer stated only that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree”. Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, *17.

The Ninth Circuit reversed the District Court’s grant of summary judgment to USCIS, and remanded the case, holding the USCIS’ denial of the visa was arbitrary and capricious. The court first examined the OOH language, holding that USCIS’s denial of the petition on this basis was arbitrary and capricious. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation. Id. The court found there to be no appreciable difference between these two descriptions, stating that: “[t]here is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria”. Id. Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, lambasting USCIS’s reasoning as “beyond saving” and stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

The court was similarly unpersuaded by USCIS’s argument that OOH language stating that “some employers hire workers with an associate’s degree” indicates that a bachelor’s degree is not normally required for the position. Id. at 10. In fact, the court reasoned, this language is entirely consistent with the regulatory criteria, which requires only that a bachelor’s degree “normally”, and not “always”, be required for entry into an occupation. Id. The court stated that “[w]hile agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which limited Auer deference to “genuinely ambiguous” regulations. Id. at 10-11.

The court also held that USCIS’s denial was arbitrary and capricious because it mischaracterized the language in the OOH. Id. at *12-13. The USCIS decision claimed that the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify”, when in fact it states merely that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” Id. at 13. While it acknowledged that “a factual error is not necessarily fatal to an agency decision”, the court found USCIS’s misconstruction of the OOH language to be arbitrary and capricious in this instance because whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. Id.

Finally, the court found USCIS’s decision arbitrary and capricious because it failed to consider key evidence. Id. at *14. The court reasoned that OOH language stating that a bachelor’s degree is the “[t]ypical level of education that most workers need” to become a computer programmer was prominently featured on the OOH landing page and of central importance to the USCIS’s determination, but the USCIS failed event to mention this language in its decision. Id.

While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum that rescinded earlier 2000 guidance that acknowledged the position of computer programmer as a specialty occupation. The 2017 policy memorandum relied on the current language in the OOH as basis for rescission of the earlier guidance. Importantly, the Ninth Circuit in Innova Solutions held that this same language from the OOH does not contradict the regulatory criteria at 8 C.F.R. 214.2(h)(4)(iii)(A), effectively undercutting the USCIS’ rationale for issuing the 2017 memorandum.

Additionally, Innova Solutions represents the first recent reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. In Defensor v. Meissner, for example, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it employed on the grounds that the end hospital where the nurses were placed was really the supervising entity, and reasoning that no evidence suggested these hospitals required the nurses to possess bachelor’s degrees.  Defensor v. Meissner, 201 F.3d (5th Cir. 2000). In Defensor, the court held that the held that the criteria in 8 CFR § 214.2(h)(4)(iii)(A) are merely necessary conditions, rather than necessary and sufficient conditions, to establish that a position is a specialty occupation, a decision the USCIS often cites in H-1B RFEs. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of USCIS’s position that a position which requires a degree in a specific specialty related to the duties and responsibilities of the job should be accorded more weight than a generic degree requirement. Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007). Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.

The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. See, e.g., Taylor Made Software, Inc. v. Cissna, Civil Action No. 2019-0202 (D.D.C. 2020); Relx, Inc. v. Baran, 397 F. Supp. 3d 41 (D.D.C. 2019); Next Generation Technology v. Johnson, 15 cv 5663 (S.D.N.Y. 2017). In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.

Finally, one cannot overstate the growing importance of Kisor v. Wilkie in limiting the USCIS’s ability to exercise broad discretion in interpreting its own regulations under Auer precedent. Auer v. Robbins, 519 U.S. 452 (1997). In its decision in Innova Solutions, the court acknowledges that Auer deference applies only to genuinely ambiguous regulations, which 8 C.F.R. 214.2(h)(4)(iii)(A) is not. The court’s decision reminds the USCIS that Auer deference is not a broad license to deny meritorious H-1B petitions.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Denial of H-1B Cases: The Occupational Outlook Handbook is Not the Holy Grail

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By Cyrus D. Mehta and Gianna Boccanfuso∗

The USCIS continues to strictly scrutinize H-1B petitions. According to an NFAP report, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. In recent times, seeking review of an H-1B denial in federal district court has led to successful outcomes such as in Relx v. Baran.  Often times, after filing a complaint in federal court under the Administrative Procedures Act alleging that the decision was arbitrary and capricious, the USCIS reopens the denial and approves the case, or issues another Request for Evidence (RFE). Upon responding to the RFE, as has been our experience in one matter, the USCIS approved the H-1B.

While many have experienced success, there have also been a spate of H-1B decisions mostly from federal district courts in California that have gone the other way. In these denials, the courts have upheld the USCIS’ interpretation of the description of the occupation in the Occupational Outlook Handbook. For example, in Xiaotong Liu v. Baran, 2018 U.S. Dist. LEXIS 222796, the Central District of California upheld the USCIS’ denial of an H-1B petition for an Event Manager to oversee the functions of business conference coordination and event gathering for the petitioning company, Innsight. The USCIS decision concluded that:

As shown in the OOH, although a baccalaureate level training is generally required, the position of Meeting, Convention or Event Planner is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no apparent standard for how one prepares for a career as a Meeting, Convention or Event Planner and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what a course of study might be appropriate or preferred.

As in most decisions, the District Court of the Central District of California analyzed whether the Plaintiff satisfied one of the four prongs of the following regulatory 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).

Looking at only the first and second criteria of 8 C.F.R. §214.2(h) (4) (iii) (A) the court found that the USCIS’ denial of Innsight’s H-1B petition was not arbitrary and capricious and therefore granted Defendant’s motion for summary judgment.  The court  held that the  government’s denial was not arbitrary and capricious in regards to the first criterion, a bachelor’s degree as a minimum requirement, because there was a rational basis for the conclusion that the position of Event Manager did not require a degree in a specific field or its equivalent when the OOH demonstrates a preference for prerequisite course work that does not amount to a necessity when it states that “other common fields of study include communications, business, and business management” but does not mention particular course work as essential.

The court also acknowledged that “[d]istrict courts appear somewhat split on whether the fact that some positions do not require a bachelor’s degree is enough to provide a rational connection between the OOH language and a failure to prove that a position is a specialty occupation. Compare Ajit Healthcare Inc. v. United States Dep’t of Homeland Sec., No. CV131133GAFJPRX, 2014 U.S. Dist. LEXIS 186258, 2014 WL 11412671, at *4 (C.D. Cal. Feb. 7, 2014) (finding “a ‘rational  connection’ between the Handbook description of the job in question and the conclusion that a [position] would not normally require a baccalaureate degree or higher” when the OOH provided that “[a]lthough bachelor’s and master’s degrees are the most common educational pathways work in this field, some facilities may hire those with on the-job experience instead of formal education”) (internal citation omitted) with Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (“Even affording appropriate deference to the Government’s interpretation of the statutory and regulatory requirements, this Court is at a loss to see a ‘rational connection’ between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’ determination that ‘computer programmers are not normally required to have a bachelor’s degree.'”).” In Xiaotong Liu v. Baran, unfortunately, the court sided with the USCIS’s interpretation of the OOH.

On the second criterion, the court found based on job postings from similar organizations submitted by the Plaintiff, that a reasonable fact finder could have concluded that job requirements vary based on employee when only two out of four listings required a bachelor’s degrees in hospitality or even management therefore making the USCIS decision, that a specific degree is not required in parallel positions among similar employers, not arbitrary or capricious.

In making its determination, the court distinguished Tapis Int’l v. I.N.S. 94 F. Supp. 2d 172, 176 (D. Mass. 2000) and Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). In Tapis the court determined that the INS abused its discretion when it found that a Showroom Manager position at an interior design firm was not a specialty occupation even when the record indicated that the position “required a bachelor’s degree from a limited number of academic fields in addition to design experience.” However, the court also held that “a generalized bachelor’s degree requirement, without more, is not enough to make the position a ‘specialty occupation.’” Tapis Int’l v.I.N.S., 94 F. Supp. 2d 172, 176 (D. Mass. 2000).The Xiaotong Liu court found that the reasoning in Tapis is not relevant or applicable since in Tapis no specific degree was available in the field of interior design showroom management but there is a specific degree in the field of event management. In Residential Finance, the court found USCIS’ denial of Plaintiff’s petition due to its failure to prove that the Market Research Analyst position was a specialty occupation was arbitrary, capricious and an abuse of power. USCIS had acknowledged several errors in the denial and the record in the case indicated that “a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields.” 839 F. Supp. 2d 996-97. The Xiaotong Liu court distinguished the finding in Residential Finance, finding that the OOH did not suggest that any particular course work is essential for the position of Event Manager, but rather it stated that “planners who have studied meeting and event management or hospitality management may start out with greater responsibilities than those from other academic disciplines.”  The court also used the First Circuit holding in Royal Siam Corp. v Chertoff, 484 F.3d 139 ((1st Cir 2007) against Plaintiff. In Royal Siam, the court rejected the argument that a restaurant manager required a degree in business administration, even though Plaintiff in Xia0tong Liu valiantly demonstrated that a bachelor’s degree is normally required for an Event Planner under the OOH and Liu in fact had a bachelor’s degree in business management with a degree in hospitality management. Additionally, the court held that while USCIS did not explicitly analyze the expert opinion letter under the complexity of the position prong, it did not abuse its discretion when finding that Innsight failed to meet its burden of proof because USCIS demonstrated review of the letter through its use of the content in its analysis of other prongs. Therefore the court found that the conclusion did not rise to the level of arbitrary and capricious. In regard to the prior use of the expert letter by USCIS, the court stated that USCIS should weigh the probative value of an expert opinion as one factor in determining whether an industry requires a degree even when it may conflict with the OOH since the OOH is also but one factor in making the determination. However, the court did find that USCIS had a rational basis for concluding that the expert letter did not explain how the expert opinion from a business professor “determined that a bachelor’s degree in hospitality management or a related field is a standard requirement within the industry for parallel positions among  similar organizations” when he stated that he “observed standard hiring practices as they pertain to a variety of positions in … event planning” but only indicated that he was familiar with the general related field and not practices  specifically among similar employers.

Unfortunately, every argument that Plaintiff made was shot down because it could not overcome the obstacle imposed on the event planner occupation in the OOH, or at least the faulty USCIS’ interpretation of it that a bachelor’s degree in a specific specialty was a normal requirement for entry into the event planning field. In that sense the court’s decision was also faulty. Hotel management, which is analogous to event management, has long been considered a professional position in Matter of Sun, Interim Dec. 1816 (1966). The reasoning in Matter of Sun justifying hotel management was far more elegant in 1966 than in Xiaotong Liu in 2019 as there was a recognition that occupations continue to expand from the traditional professions of law, medicine and theology. This sort of commonsensical and pragmatic reasoning was conspicuously absent for the occupation of Event Planner in Xiaotong Liu.

In Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, the District Court for the Northern District of California found that the Plaintiff’s (Innova) position of Programming Analyst, falling under the OOH’s Computer Programmer classification, did not satisfy the requirements of a specialty occupation when the OOH’s description for Computer Programmer did not describe the normal minimum educational requirement in a categorical  fashion instead stating that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree” Id at 17. The court then found that USCIS’ conclusion that Innova failed to show the position of Programmer Analyst normally required a bachelor’s degree was not arbitrary or capricious when the Plaintiff did not challenge the decision in their motion for summary judgment nor present any evidence showing a common degree requirement in the industry in parallel positions among similar organizations. Further, the court found that evidence provided by Innova to prove the position of Programmer Analyst is so complex or unique that it can only be performed by an individual with a degree, was not probative and therefore USCIS was not arbitrary and capricious in concluding that Innova failed to present sufficient evidence. The court found that Innova submitted a letter from their attorney describing the anticipated duties and a letter from the end client which incorrectly identified  the position and listed duties inconsistent with those in the attorney’s letter. The end client letter also described the beneficiary as leading and directing the work of others, although this contradicted with the duties described in the attorney letter and also because the beneficiary was being paid a Level 1 entry level wage.  The court also cast doubt whether an attorney could make representations on behalf of clients.  The court then turned to the third criterion under 8 CFR § 214.2(h)(4)(iii)(A), whether the employer normally requires a degree or its equivalent for the position, and found that since Innova did not challenge USCIS’ decision they did not have a basis to conclude whether the decision was arbitrary or capricious or constituted an abuse of discretion. With respect to the fourth criterion, whether 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, the court found that, in their respective briefs, the parties discussed it together with the second clause of the second criterion and therefore for the same reasons the court found that Innova had not shown the USCIS’ denial to be arbitrary and capricious or an abuse of discretion.

The facts were weak and contradictory in Innova, and thus it is hardly surprising that the court affirmed the USCIS’ denial, even though the court accepted USCIS’ interpretation of the OOH entry for Programmers  as not always requiring a bachelor’s degree. The other  arguments made by Plaintiffs under the second and fourth criteria were not strong enough to overcome the OOH description for Programmers.

Finally, in Altimetrik Corp. v. USCIS, 2019 U.S. Dist. LEXIS 141512, the District Court for the Eastern District of Michigan, Southern Division found that USCIS’ decision was not arbitrary or capricious, nor an abuse of its discretion when it determined that that Plaintiff actually sought the beneficiary as a Systems Analyst even though the position in the H-1B petition was for a Software Developer. The USCIS found that the duties matched those of a Systems Analyst, and according to the OOH entry for systems analysts, “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 have skills in information technology or computer programming.” The court did not seem to disagree with the USCIS’s change of occupation.  This tactic of switching occupations is often used by USCIS as the description for Computer Systems Analyst in the OOH, with respect to educational requirements,  is not as favorable as Software Developers, thus providing more ammunition to USCIS to disagree that that it is a specialty occupation.  The court also  did not find that the duties were complex and unique under the second criterion or specialized and complex under the fourth criterion. With respect to the third criteria, although Plaintiff provided proof of educational and pay documents for 20 of the 70 employees whom it hired as software developers, the court agreed with the USCIS’s reliance on Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) that the Plaintiff did not provide proof of the client entity’s requirement of a bachelor’s degree for the position. Plaintiff also  failed to establish by a preponderance of the evidence that the beneficiary would be preforming actual work that would qualify his job as a specialty occupation and therefore denied the petition. The court found that USCIS was correct in determining the evidence provided did not establish that beneficiary would be preforming actual duties requiring the skills of someone with a bachelor’s degree or higher when the only project the beneficiary was assigned to had ended, the description of the second project that the beneficiary would be working on did not align with the job duties listed by the Plaintiff, and that promotional material referenced by Altimetrik as proof of various projects that the company was engaged in did not indicate if the projects were ongoing, whether the specific office the beneficiary would be working in was involved or that there were positions on the projects for the beneficiary that involved qualifying specialty occupation work.

In Altimetrik Corp, it was problematic that the court agreed with the USICS’s characterization of the position being akin to that of a systems analyst even though the Plaintiff had designated it as a software developer. Also problematic was that the court relied on Defensor v. Meissner in shooting down Plaintiff’s contention that it has hired other employees with the similar educational qualifications because it was not able to prove the educational requirements of the client that would ultimately employ the beneficiary. Defensor v. Meissner involved a nurse staffing agency where the nurses were always assigned to hospitals that were clients of the staffing agency, and the Fifth Circuit considered the hospitals as the actual employers of the nurses. Unfortunately, Defensor v. Meissner  is used broadly to nix claims by employers that they hire others with the same educational credentials even where they can show they are the actual employers who control the employment. Indeed, in all H-1B petitions, it is the petitioner that must demonstrate an employer-employee relationship with the H-1B worker, and this has been affirmed by the Neufeld Memo. If the client is the actual employer and not the petitioner, then the H-1B petition can never be filed by the petitioning entity ever.  Defensor v. Meissner is thus a contradiction as it considered the client as the employer rather than the petitioner, which  is now liberally used by USCIS, and also affirmed by courts, to deny H-1B petitions even where the petitioner is the actual employer. Of course, the facts in Altimetrik regarding its inability to show continuing employment were less than ideal, and this was not the appropriate case to overcome objections under Defensor v. Meissner, leave alone challenge the USCIS’s reliance on the OOH with respect to systems analysts.

Though Xiaotong Liu, Innova and Altimetrik may paint a bleak picture for challenges to H-1B denials in federal court, with petitioners being defeated by the deference given to USCIS’ determinations, there have been recent cases which provide guidance and hope. In Next Generation Tech. Inc. v. Johnson the U.S. District Court for the Southern District of New York found that USCIS disregarded or failed to explain why it discounted substantial evidence in the record that could have supported a determination that petitioner had met the requirements for an H-1B visa and therefore its decision to revoke the initial petition and denial of petitioner’s second amended petition were arbitrary and capricious. Starting with the first criterion, the position’s requirement of theoretical and practical application of a body of specialized knowledge, the court found that USCIS failed to give adequate reasons as to why the position description did not require theoretical and practical application of a body of highly specialized knowledge by failing to articulate why the enumerated duties were incompatible with a specialty occupation  when petitioner provided a bulleted list of duties and subsequently a project description that described the roles and responsibilities for each position needed for the project, specifically stating that beneficiary’s role would be that of “ Sr. Programmer/Programmer” and would include “technical program coding; developing the functional program; algorithm development; and debugging the existing programs.” Id at 26. Turning to the second criterion, the position requirement of attainment of a bachelor’s or higher degree in the specific specialty, the court found that USCIS’ determination was arbitrary and capricious when the USCIS disregarded pertinent evidence in the record and failed to articulate a satisfactory explanation for its action when determining that the programmer position being offered was not a specialty occupation. The court stated that there was no rational connection between evidence from the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS determining that computer programmers are not normally required to have a bachelor’s degree.  Additionally, the court noted that USCIS acted in direct contradiction to an internal USCIS memorandum which stated that USCIS will “generally consider the position of programmer to qualify as a specialty occupation.”  The court additionally evaluated USCIS’ determination that petitioner and beneficiary would not be in a valid employer-employee relationship. In doing so, the court went through all eleven factors in the  Neufeld Memo to find that based on evidence provided by Next Generation Tech, many if not all of the factors weighed in their favor and USCIS seemingly did not gather all the evidence or consider all the relevant factors in analyzing it.  The decision in Next Generation helps to combat the decision in Innova specifically in regard to USCIS’ use of the OOH. While it is advisable to build a case on the other prongs of the statutory requirement and not simply on the OOH, the decision in Next Generation displays a common sense approach to the language used in OOH listings by recognizing the use of most when speaking to those who have bachelor’s degrees in a position can rationally constitute a normal requirement.

In Raj & Co. v. United States Citizenship & Immigration Servs., 85 F. Supp. 3d 1241, the court came down with another positive decision. The court in Raj found that USCIS had abused its discretion when it impermissibly narrowed the plain language of the statute by requiring a single specifically tailored and titled degree and therefore reading plain language out of the statue when determining, “although a baccalaureate level of training is typical, the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education is a specific specialty as a normal, minimum for entry into the occupation,” The court went on to say that there was evidence in the record which showed that the proffered position required a specialized degree in “market research” or an equivalent technical degree accompanied by relevant coursework in “statistics, research methods, and marketing” as a minimum for entry. Furthermore, the court noted that “While judicial review of agency decisions is highly deferential, it is not without teeth. Agency action cannot survive judicial review where the agency fails to ‘articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” Another positive outcome for H-1B petitioners came in Relx v. Baran, Case No. 19-cv-1993. In Relx the court found that USCIS was arbitrary and capricious in its determination that the offered position of Data Analyst under the occupational title of Business Intelligence Analysts was not a specialty occupation solely on the fact that the OOH did not contain a detailed profile for the position and the use of O*NET, therefore standing alone, failed to establish the occupation as a specialty occupation. The court pointed out that the OOH did in fact provide the information needed to classify the position as a specialty occupation, and contained the O*NET cross reference, therefore holding that USCIS’ conclusion to be “factually inaccurate and not supported by the record.” Furthermore, in response to USCIS’ claim that the position of Data Analyst would never be specialized because multiple fields of education appear to be acceptable for entry into the position, the court stated that, “there is no requirement in the statute that only one type of degree be accepted for a position to be specialized.” Both cases provide reassuring reminders on the limits of deference especially following the decisions in Xiaotong Liu, Innova and Altimetrik.

In conclusion, it is inappropriate for the USCIS to blindly defer to the OOH as a basis to deny an H-1B petition. We have blogged about this particular behavior previously, here, calling attention to the fact that there is no existing regulation designating the OOH as sole authority for classifying specialty occupations and that the OOH itself includes a disclaimer stating that, “the OOH, therefore, is not intended to, and should never, be used for any legal purpose.” Our previous post on the matter also details the way in which the OOH is a cumbersome tool. With the DOL having not amended its LCA to accept 8 digit SOC codes, it therefore forces petitioners to rely on more general occupational titles with 6 digit SOC codes, such as Computer Occupations, All Other , which results in inappropriate denials from USCIS, as we saw in Relx. Even the authors of the OOH, which is the DOL, did not intend for USCIS to use the OOH in this manner. A DOL FOIA response found at AILA Doc # 19101011 states: “In response to your request for ‘guidance,’ the BLS OOH program provides staff who receive inquires on this topic with the following guidance: we have known for several years that the U.S. Customs and Immigration Service (USCIS) occasionally uses education and training information in the OOH to establish strict education requirements for H-1B eligibility. This is an incorrect use of the OOH information and we discourage this practice.”  Additionally, in correspondence provided in the FOIA, BLS employees include the OOH disclaimer linked above in their responses to inquiries about OOH and even explicitly state that, “making legal decisions about whether a position qualifies as a specialty occupation is an erroneous use of the OOH. The purpose of the OOH is for use by students and adult jobseekers in the United States for career planning.”  It is unfortunately clear that USCIS’ reliance on the OOH as a basis to deny H-1B petitions, though inappropriate and contrary to the purpose of the OOH, will continue. While there are some cases which have correctly overturned USCIS due to this practice, it would be beneficial for more petitioners to challenge these denials in court – of course bring cases only with strong facts –  in hopes of obtaining more positive holdings overturning USCIS decisions that uphold its slavish reliance on the OOH.

∗Gianna Boccanfuso is a JD student at Brooklyn Law School and is currently an Extern at Cyrus D. Mehta & Partners PLLC

 

 

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.

 

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.