Tag Archive for: Tapis International v. INS

Cyrus Mehta

Comment to Proposed H-1B Rule Expressing Concern Over New Definition of Specialty Occupation

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December 22, 2023

Submitted via www.regulations.gov

DHS Docket ID No. USCIS-2023-0005

Department of Homeland Security

U.S. Citizenship and Immigration Services

Office of Policy and Strategy

5900 Capital Gateway Dr.

Camp Springs, MD 20588-0009

 

Attn: Charles L. Nimick

Chief, Business and Foreign Workers Division

Re:      Regulatory Proposal for Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers – Comment on Proposed Changes to H-1B Registration Process at 8 CFR 214.2(h)(8)(iii)

Dear Mr. Nimick:

Cyrus D Mehta & Partners PLLC (“CDMP”) is a New York law firm that focuses its practice mainly in the area of US immigration law and represents many clients in H-1B visa matters. CDMP also advocates on behalf of its clients to achieve fairer and just immigration laws, and also posts articles on its widely read The Insightful Immigration Blog, https://blog.cyrusmehta.com, in furtherance of this objective.  CDMP is accessible at www.cyrusmehta.com.

CDMP limits its comments to the proposed new definition of “specialty occupation” and the proposal that the USCIS will look to the  end client’s requirements to determine whether the position qualifies as a specialty occupation.  These are the NPRM that are cause for  concern.

The NPRM’s New Definition of “Specialty Occupation” Contradicts the INA

We commend DHS for clarifying in the proposed regulation that in order for a particular bachelor’s degree to be normally considered the minimum requirement, “normally does not mean always” and that the agency will not differentiate “normally” from the equivalent terms such as “mostly” or “typically” used in the DOL’s Occupational Outlook Handbook (“OOH”) and other sources of information describing the preparatory requirements for occupations. This is consistent with Innova Sols., Inc v. Baran, 983 F.3d 428 (9th Cir. 2020) where the court held that “ … there is no daylight between typically needed, per OOH, and normally required, per regulatory criteria. ‘Typically’ and ‘normally’ are synonyms.”

However, we are deeply concerned that the provision in the NPRM that requires specialized studies to be “directly related” to the position impermissibly exceeds the statutory requirements of the Immigration and Nationality Act  (“INA”). The NPRM at 8 CFR 214.2(h)(4)(ii) states,

A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.

There is no requirement in the INA provision that the required specialized studies must be “directly related” to the position. Under § 214(i)(1) of the Immigration and Nationality Act (“INA”) 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

Therefore, in contrast to the requirement in the NPRM that the degree must be “directly related” to the position, the statute at INA § 214(i)(1) clearly provides a substantially broader standard, stating that a requirement of a degree in the specialty or its equivalent can form the basis of a specialty occupation. A federal court explicitly stated that the statutory language defining a specialty occupation includes not only a required degree in the specialty but also other combinations of academic and experiential training that would qualify a beneficiary to perform the duties of the specialty occupation. In Tapis International v INS, 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.

Tapis International v INS, 94 F. Supp. 2d 172 (D. Massachusetts 2000).  The holding of Tapis International therefore specifically precludes the impermissible limitations that the agency seeks to impose in the NPRM by limiting employers to require only degrees that are “directly related.” The language in INA § 214(i)(1) that defines a specialty occupation by the requirement of either a bachelor’s degree or higher in the specific specialty “or its equivalent” as a minimum for entry into the occupation is distinct from the statutory requirement of the qualifications that the H-1B beneficiary must possess to qualify for the specialty occupation. The statute sets forth distinct requirements at INA § 214(i)(2) for the beneficiary to establish his or her qualifications for the specialty occupation, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty.

Therefore, the phrase in the statutory definition of specialty occupation at INA § 214(i)(1), which includes both a bachelor’s degree or higher in the specific specialty and the alternative of “its equivalent” broadens the permissible requirement for a specialty occupation to “not only skill, knowledge, work experience, or training … but also various combinations of academic and experience based training.” See Tapis, supra. Thus, under the statutory language, a position can qualify as specialty occupation not only on the basis of a specialized degree requirement, but also where the occupation requires a non-specialized degree combined with specialized experience, training or coursework as the equivalent of a specialized degree to serve as the minimum requirement for entry into the occupation. The rigid standard in the NPRM that the agency seeks to impose with its requirement that every permissible degree must be “directly related” contradicts the clear language of the statute and is therefore ultra vires and impermissible.

Another area of significant concern to our organization is the agency’s misplaced and impermissible attempt to exclude positions requiring business degrees from the definition of specialty occupation. In its focus on excluding these positions from the definition of specialty occupation, USCIS appears to base its analysis on outdated notions that positions requiring a business degree are too generalized to qualify for H-1B classification. On the contrary, graduates of undergraduate and graduate business programs typically gain high-demand, sought-after skills in specialized STEM and business areas, including data analysis, technology management, accounting, financial forecasting and analysis, and many other disciplines. For many years the agency’s practice has been to provide employers with the opportunity to establish that a position’s requirements and the beneficiary’s qualifications were sufficient to qualify as a specialty occupation through either a business degree with a formal concentration or, alternatively, through a specific combination of coursework, or in some cases specialized professional experience. We urge the agency to recognize this important and long-established policy and practice and continue to allow employers to build a record to establish the specialized needs of sponsored positions to qualify as specialty occupations.

Similarly, we have significant concerns with the language in the preamble to the rule that would disqualify positions that require an engineering degree, without specialization, from qualifying as a specialty occupation. The NPRM states that “a petition with a requirement of any engineering degree in any field of engineering for a position of software developer would generally not satisfy the statutory requirement” as the petitioner may not be able to demonstrate that a range of fields of engineering would qualify the H-1B worker to perform the duties of a specialty occupation. This interpretation is impermissibly narrow and subverts the intent and the plain language of the statute. When a federal court recently overturned an agency denial of an H-1B petition based on the employer’s requirement for a non-specialized engineering degree, the court explained that the statute does not require specialty occupations to be subspecialties. In its analysis, the court stated:

 

Importantly, the INA defines professions — the basis of the H-1B Regulation’s specialty occupation requirement — at the categorical level (e.g., “lawyers” and “teachers,” 8 U.S.C. § 1101(a)(32), rather than “tax lawyer” or “college English professor,” see id.) and specifically includes “engineers,” id. In addition, the specialty occupation provision arose from a need “to meet labor shortages . . . in occupational fields, such as nursing, engineering, and computer science.” 1988 Proposal, 53 FR 43217-01, at 43218 (emphasis added). Put simply, in contrast to a liberal arts degree, which the Service deemed “an [in]appropriate degree in a profession” because of its “broad[ness],” 1990 Rule, 55 FR 2606-01, at 2609, an engineering degree requirement meets the specialty occupation degree requirement.

InspectionXpert Corp. v. Cuccinelli, 1:19cv65, 58 (M.D.N.C. Mar. 5, 2020).

The decision in InspectionXpert, in addition to explaining that the statute disallows the requirement of specialized engineering degrees, aligns with the reality of the workplace and the skills gained in engineering degree programs. While there are many types of engineering disciplines, engineering degree programs provide a common core of advanced quantitative and technological skills that prepare the worker to perform the technical duties of a range of positions in specialty occupations such as Operations Research Analyst, Software Developer or Computer Systems Analyst. Again, we urge USCIS to recognize the long-established practice of allowing employers to build a record to establish the specialized needs of their positions to qualify as specialty occupations, including those where the employer believes that the requirements of a particular position includes a number of engineering degrees or a non-specified engineering degree.

Moreover, the disfavoring of business management and engineering degrees in qualifying a position for H-1B classification flatly contradicts the Biden Administration’s National Security guidance and strategy on “attracting and retaining the world’s best talent” and the President’s October 30, 2023, Executive Order on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.” Executive Order (“EO”) 14110. In studying the AI workforce, experts have found that primary degrees required for core AI job duties are business administration, computer science, engineering, mathematics, and statistics.[i] Yet, USCIS has chosen to provide an example in the preamble explanation of the NPRM cautioning employers about requiring the type of quantitative and problem-solving skills developed in an engineering degree as unlikely to be “directly related” to a qualifying H-1B position, and has proposed codifying in regulation that positions requiring business administration studies should not qualify for H-1B status. This creates unnecessary hurdles for employers engaging in on-campus recruitment in the U.S. where international students account for more than 50% of graduate engineering degrees [ii] and are among those completing a Master of Business Administration or Bachelor of Business Administration,[iii] and deprives our economy of the precise types of AI, technology and national security talent that the Biden Administration is making significant effort to attract and retain.

In conclusion, the proposal to redefine “specialty occupation” will not only contravene the statutory provisions defining the H-1B criteria, but it will make it unnecessarily restrictive and run counter to the Administration efforts to boost our competitive advantage and our economy. See Stuart Anderson’s Biden Immigration Rule Copies Some Trump Plans to Restrict H-B Visas, Forbes (October 23, 2023), which provides examples of emerging occupations vital to U.S. economic growth and competitiveness that may not qualify under the proposed definition of specialty occupation. The views of the undersigned are also reflected in this article.

Therefore, CDMP proposes that USCIS delete the language in proposed 8 CFR § 214.2(h)(4)(ii) stating that “[t]he required specialized studies must be directly related to the position” and “A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, if sufficient to qualify for the position.”

We request that the regulatory language remains consistent with the definition of “specialty occupation” under  INA § 214(i)(1) that  requires “[a]ttainment 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.” Also, the proposed regulation should allow for a specific body of knowledge required to perform the job duties of the position to properly interpret “or its equivalent” in INA § 214(i)(1). For instance, if the position of management analyst requires a bachelor’s degree and specialized experience or training, it ought to be considered a “specialty occupation” for H-1B classification if the beneficiary possesses a bachelor’s degree in a liberal arts field and also has experience or training in marketing. Similarly, the position ought to also qualify as a specialty occupation if the candidate possesses a bachelor’s degree in liberal arts but has significant course work in quantitative fields such as statistics and data analytics that would allow the beneficiary to perform the duties of the position of marketing analyst.

 

The End Client’s Requirements Should Not Determine the Degree Requirement

Under the NPRM, for a worker who will be “staffed” to a third-party client site, the client rather than the employer would need to establish that it would normally require a U.S. bachelor’s degree in a directly related specific specialty. We believe that this requirement is unduly burdensome in the normal course of business as it would be difficult for the sponsoring employer to obtain such documentation from a client.

The agency’s reliance in the NPRM on the 5th Circuit’s holding in Defensor v Meissner, 201 F. 3d 384 (5th Cir. 2000) is misplaced. In Defensor, the Court treated the client as a co-employer. In contrast, the H-1B regulations contemplate only the petitioner as the employer. The client does not supervise the H-1B worker or evaluate their job performance. The clients of the petitioner would certainly not want to be viewed as a co-employer and incur potential liability from a claim by the H-1B worker.

Under the NPRM, it is important to note that the educational requirements of the third party would only be taken into account and would only apply if the H-1B worker is contracted in a “staff augmentation” arrangement to the third party as opposed to providing services to the third party.  Defensor v. Meissner involved a staffing agency for nurses that filed the H-1B petitions and contracted the nurses to hospitals. There is a critical distinction between the nurse in Defensor v. Meissner and a software engineer who is providing services to the client rather than being staffed to the client. The absence of clear guidance on this key distinction is likely to result in a proliferation of RFEs resulting in burdens for the employer and inefficient use of government resources.

For these reasons, CDMP proposes that the phrase “or third party if the beneficiary will be staffed to that third party” in 8 CFR 214.2(h)(4)(iii) be deleted.

Sincerely,

 

Cyrus D. Mehta

Managing Partner

 

 

 

 

[i] Autumn Toney and Melissa Flagg, U.S. Demand for AI-Related Talent Part II: Degree Majors and Skill Assessment (September 2020), Center for Security and Emerging Technology, p. 3.

[ii] See e.g., National Science Foundation, Science & Engineering Indicators 2022, “International S&E Higher Education and Student Mobility,” which reported that students on temporary visas earned 50% of engineering Master’s degrees in the United States and over half of U.S. doctoral degrees in engineering (State of U.S. Science & Engineering 2022, National Science Board).

[iii] Higher-ed institutions commonly offer four different types of Business degrees: Bachelor of Arts or Bachelor of Science degrees in Business, which have different distribution requirements and different options for “specialization” as compared to a Bachelor in Business Administration and a Master in Business Administration. The proposed regulatory text would permit an adjudicator to start with a presumption that a Bachelors or Masters in Business Administration cannot be qualifying, based on the label of the degree, and by default ignore a completed minor or concentration, for example, as not being a “specialization,” without obligating the adjudicator in all cases to review and give weight to the transcript.

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

Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials

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In recent denials of H-1B petitions, the USCIS has been taking the position that the occupation for which H-1B classification is sought must require a degree in the specific field.  This position runs contrary to the definition of a specialty occupation. An occupation that may require a degree is diverse fields may also qualify.  Denials resulting in the wholesale reading out of qualifying occupations will likely continue when H-1B cases selected under the FY 2019 cap are adjudicated. A careful analysis of the statutory definition of specialty occupation provides a good starting point to challenge such denials.

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

The regulation at 8 CFR § 214.2(h)(4)(ii) parrots INA § 214(i)(1) by defining “specialty occupation” as follows, except that the regulation requires a bachelor’s degree in “a” specific specialty while the statute requires a bachelor’s degree in “the” specific specialty, which may be a distinction without a meaningful difference:

Specialty occupation means an occupation 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.

At issue is whether the occupation, in order to qualify for an H-1B visa, must require a bachelor’s degree in the specific specialty. A lawyer would qualify as a specialty occupation as only a degree in law would allow entry into the occupation. But INA § 214(i)(1) reads more broadly. It also ought to encompass a marketing analyst, even though this occupation may require a bachelor’s degree in diverse fields such as marketing, business or psychology. Unfortunately, the USCIS does not always agree. Is the USCIS correctly interpreting INA §214(i)(1).

The answer lies with how the phrase in the parenthetical “or its equivalent” is interpreted in INA § 214(i)(1). 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 phrase “or its equivalent” in INA 214(i)(1) is distinct from what the H-1B beneficiary is required to possess to qualify for specialty occupation.  INA 214(i)(2) sets forth separate requirements, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty. Therefore, the phrase “or its equivalent” actually broadens the requirement for a bachelor’s degree is a specific specialty to encompass “not only skill, knowledge, work experience, or training ….. but also various combinations of academic and experience based training.” See Tapis, supra. Thus, if an occupation requires a generalized degree, but specialized experience or training, it should still qualify as a specialty occupation. The AAO often cites Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007) for the proposition that a general purpose degree is not sufficient to meet the definition of a specialty occupation. In Royal Siam Corp, the First Circuit stated that a degree requirement in a specific specialty-one that relates directly to the duties and responsibilities of a particular position-is given more weight by the agency than a requirement for a generic degree. Thus, if the position carefully outlines the specialized degrees or experience that are essential to perform the duties of the position duties, it should be distinguished from the holding in Royal Siam Corp.

If USCIS does not consider this interpretation of “or equivalent”, it would be impossible to classify most occupations for H-1B classification. Under Residential Finance Corp. v. USCIS, 839 F. Supp.2d. 985(S.D. Ohio 2012), the court found that “[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has obtained the credentialing indicating possession of that knowledge.” The AAO has accepted this finding and has added that when there are disparate fields listed as minimums into the field, the petitioner must establish “how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties.” Matter of N-L-, Inc. AAO August 3, 2016.

Accordingly, there is a clear basis to challenge a USCIS denial on grounds that the occupation does not always require a degree in the specific specialty or that the degree may be too generalized, especially where an employer has taken pains to connect the specialized duties with the degree requirement. Indeed, 8 C.F.R. § 214.2(h)(4)(iii)(A) is further  consistent with INA § 214(i) as it provides several ways in which a petitioner can establish that the position can qualify as a specialty occupation.  Those criteria are:

(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).  The petitioner is required only to show that the position meets one of the four criteria. Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000), which the USCIS also relies on when denying H-1B petitions,   held that the four criteria in 8 CFR § 214.2(h)(4)(iii)(A) were only necessary conditions, but not necessary and sufficient conditions to establish that the occupation is a specialty occupation. In other words, an employer may under prong 3 require a bachelor’s degree for an occupation that ordinarily never requires a degree, but that may still not meet the statutory definition of a specialty occupation under INA § 214(i)(1). On the other hand, if the employer provides probative evidence of its need for a bachelor’s degree, and that its past hiring practices were also consistent with that need, as well as consistent with industry standards, the USCIS ought to accept the employer’s justification for a bachelor’s degree in a specialized field under the preponderance of evidence standard.

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the Occupational Outlook Handbook in order to justify a denial on the ground that a bachelor’s degree in a computer science is not always a requirement. A denial often focuses on the following language in the OOH:

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.

(…)

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

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation.

Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017) emphasized that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation.” In (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), and  consistent with the Next Generation Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, Residential Finance said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

It is clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. In situations where the OOH is unhelpful, such as with respect to a Food Service Manager, where the OOH makes clear that a bachelor’s degree is not always required to enter the field, the employer must take pains to even further describe the specialized and complex duties of the position within the context of the employer, and potentially rely on the fourth prong of 8 CFR § 214.2(h)(4)(iii) for establishing the specialty occupation. The fourth prong provides that “the nature of 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)(4); Fred 26 Importers, Inc. v. DHS, 445 F. Supp.2d 1174 (C.D. Cal. 2006)(although agreeing that the degree must directly relate to the position where an HR manager did not have a degree in HR management, reversed AAO for ignoring evidence, including expert opinion, that the duties were specialized and complex). Indeed, 8 CFR §214.2(h)(4)(iii)(A)(4), arguably like in Tapis, recognizes that INA 214(i)(1) requires that the specialty occupation encompasses a bachelor’s degree in the specific specialty “or its equivalent”.

INA §214(i)(1) clearly provides for a broader interpretation of a specialty occupation. The USCIS is erroneously interpreting this provision when denying H-1B cases. The denials have become more rampant under President Trump’s Buy American Hire American Executive order, and we have blogged extensively on this unfortunate trend, here,  here and here.  There is a good basis to challenge these H-1B denials based on the statutory provision itself.