At the American Immigration Lawyers Association Conference today, we heard updates about the increased H1B visa RFE's and rate of denials. As the practice of H1B filings will continue to become more complex, it is important to know how to file and document H1B cases in specific occupations to increase the approval chances.
Attorney Ekaterina Powell from our office has handled numerous H-1B cases and has prepared this article to share her expertise. Now that the H-1B annual cap for fiscal year 2013 has been reached, the individuals who have missed this year’s cap are looking for other options to extend their stay and apply for H-1B next April.
We would like to remind those who wish to use next year’s H-1B Cap to plan in advance and have everything ready long before April 1, 2013. The accelerated speed with which H-1B cap was reached this year may be a sign that the visas will run out even faster next April.
A position for which you are applying is a major consideration in H-1B case. H-1B is only available for positions that can be considered “specialty occupations” as defined by the statute and regulations.
There is no set list of positions that can qualify as specialty occupations. Therefore, each position is analyzed on a case-by-case basis.
Before the next H-1B cap season starts, we are planning to publish series of articles about the USCIS’s interpretations of specialty occupations, USCIS’s approach to certain positions, and the strategies on how to overcome unfavorable determinations of the agency within various industries. Follow our blog for the most up-to-date information and analysis pertaining to H-1B occupations.
Example of a Successful H-1B case for Market Research Analyst
In the fields of business and marketing, it is especially hard to obtain H-1B as many positions within these fields are considered merely administrative for which bachelor’s degrees in specific specialties are not required, and thus are not viewed by USCIS as specialty occupations.
We would like to share with you a success story of a complex H-1B case for Market Research Analyst we handled that was recently approved by USCIS after a motion to reopen the denial decision was submitted.
Established in 2009, ABC is a company with 12 employees that does product development and provides professional engineering services in the industry of medical system devices, consumer electronics, and alternative energy. ABC sought the part-time services of Amy, the beneficiary, as a Market Research Analyst for a period of 3 years.
U.S. Citizenship and Immigration Services (USCIS) issued a Request for Evidence (RFE) in that case asking the employer to submit additional evidence to establish that the position offered qualified as a specialty occupation.
The case was handled by California Service Center. Unfortunately, while USCIS strives to achieve uniformity in adjudication of H-1B petitions, RFEs coming from California Service Center (CSC) differ significantly from those of Vermont Service Center (VSC). While VSC adjudicators are issuing case-specific RFEs clearly identifying the deficiencies they see in the submitted evidence and giving examples of documents they are looking for to approve the case, CSC adjudicators are far off from clarity in their RFEs.
Request for Evidence Analysis
In our Market Research Analyst case for ABC company, like in any other H-1B petition for a position of Market Research Analyst and related occupations where USCIS questions whether the job offered is a “specialty occupation,” CSC issued a very generic RFE template, which requested the following:
1) More detailed job description/Nature of the position – this request asks for the specific job duties, the explanation of what differentiates the proffered position from other related "non-specialty occupation" positions, and why the position is so complex or unique that it exceeds normal industry standards such that a bachelor’s degree in a specific field of study is a realistic prerequisite for the position.
In our case we provided a comprehensive job description with the percentages of time Market Research Analyst will spend on each job duty, and analyzed why the work to be performed required the services of the individual with a college degree in the occupational classification.
In our case, the responsibilities of Market Research Analyst are two-fold at ABC company. ABC assists customers to design, develop, and deliver innovative products. As it is a product development company, it is very important for ABC to understand what types of products people want to determine who will buy the products and at what price and to advise client-companies accordingly. Therefore, it is critical for the company to know consumer preferences in terms of cost effectiveness, product design, concept, packaging, etc.
Therefore, on one hand, Market Research Analyst will assist ABC’s client-companies by researching avenues for products and analyzing consumer preferences on product design, packaging, appeal, etc.
On the other hand, ABC creates and sells products it develops. Market Research Analyst will determine the targeted segments, conduct research on consumer preferences, and will analyze competitor’s business operations.
As documentary examples of the complexity of the job duties, we provided Strategic Marketing Plan prepared by the beneficiary while on OPT, current projects, marketing initiatives of the company, and the company’s profile.
2) Evidence that Market Research Analyst is a common position required by similarly-sized businesses with similar incomes; evidence that petitioner's competitors normally require degrees in a specific specialty for closely related positions to that of a market research analyst.
This request is hard to satisfy because it would require information of hiring practices of the company’s competitors, which might be next to impossible to obtain. In our case, we submitted statements from owners of similar businesses attesting to the degree requirements for their Market Research Analysts.
3) Job listings to establish that a degree requirement is common to the industry in
parallel positions among similar organizations.
In order to satisfy this request, the petitioner needs to provide job announcements from similar organizations clearly specifying the educational background of candidates. Interestingly, USCIS states that they are looking for job announcements that show the petitioner’s size and annual income on the face of the ads. It is hard to imagine that any employer would mention its annual incomes and the number of employees in a job listing.
For this request, we provided numerous job listings for the position of Market Research Analyst from similar technology companies. However, in the initial denial decision for the case, USCIS blankly rejected the evidence stating that “the job listings are not sufficient evidence to prove that it is a common requirement in the industry to require a degree.” It is a rhetorical question why USCIS requests the evidence that they are predetermined to deny.
Despite USCIS’s position toward the required job advertisements, it is still a good idea to submit as much evidence as possible to satisfy all the requests to the extent possible.
4) Evidence of industry-re1ated professional association that has made a bachelor's degree in a specific specialty a requirement for entry into the field.
In our case, we provided information about professional associations that require degrees in specific fields from their members.
5) Letters or affidavits from firms or individuals in the industry that attest that such firms routinely employ and recruit only degreed individuals in a specific specialty.
For this request, we provided affidavits from other business owners from similar businesses confirming their hiring practices and Expert Opinion Letter from university professor who, based on his extensive knowledge of the industry and the hiring practices, attested to the specific degree requirement for Market Research Analyst position. In addition, the professor has provided a detailed analysis of the job duties to be performed by the beneficiary for ABC, the petitioner’s business model, and has provided conclusions that the duties of the position are so complex and unique that a bachelor’s in a specific field is a realistic prerequisite for the position at ABC company.
6) Petitioner's present and past job vacancy announcements for Market Research Analyst Positions.
For this request, we submitted ABC’s past job advertisement for the position of Market Research Analyst noting the degree requirement.
7) Past Employment Practices of hiring persons with a baccalaureate degree, or higher in a specific specialty, to perform the duties of the proffered position.
For this request, the petitioner provided information about the independent contractor that the company used as a Market Research Analyst who possessed a Bachelor’s degree in Marketing.
8) Petitioner's Products or Services/Nature of the Petitioner’s business - This request asks to explain what differentiates the petitioner's products or services from others in the industry and why it requires a baccalaureate level of study to perform the duties of the position.
For this request, we provided a comprehensive analysis of what the petitioner does, and supplemented our explanation with documentary evidence of Company Overview, Marketing and Company Promotion Initiatives, Project Examples, Product Positioning Questionnaire, and Marketing Strategy Analysis.
In addition, in order to alleviate any concerns of USCIS that the beneficiary will be performing duties of other non-specialty occupation positions, we provided documentary evidence showing that ABC employs other individuals for the non-specialty occupation positions, such as accounting, bookkeeping, office administration, etc.
USCIS’s response and its Analysis
Despite all the evidence and information provided in the RFE response, USCIS denied the H-1B petition stating that the petitioner has not provided sufficient evidence to satisfy “specialty occupation” standard.
According to the regulations (8CFR 214.2(h)(4)(iii)(A)), the H-1B position must meet 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 is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
USCIS interprets the term “specialty occupation” very narrowly. In the denial decision, USCIS focused on the first criterion used in determining whether the position qualifies as a specialty occupation. Specifically, USCIS stated that the first prong is not met because “a baccalaureate or higher degree in a specific academic discipline is not required for the position of Market Research Analyst.”
Interestingly, neither the statute nor the regulations require baccalaureate level of education in one specific academic discipline in order to satisfy “specialty occupation” standard.
Flaws in the USCIS’s reasoning are obvious as it is hard to find a position that would satisfy such a stringent requirement. Such interpretation would preclude a finding of “specialty occupation” in any field of endeavor where there is no single degree major that is appropriate to fill the position.
For example, Software Engineer has been continuously recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding degrees in a number of academic fields, such as computer science, software engineering, physics, computer information systems, or mathematics. See e.g. Matter of [name not provided], Case No. WAC 99 140 51643 (Jan. 25, 2001); Matter of [name not provided], Case No. WAC 04 037 53653 (May 20, 2005); Matter of [name not provided], Case No. WAC 07 149 50969 (Oct. 22, 2008); Matter of [name not provided], AAO, Jan. 9, 2004; Charles S. Davis & Assoc. v. Simmons, Civ. No. 88-CV-73002-DT (E.D. Mich. 1988).
In addition, the requirement that the degree must be in a specific academic major has recently been explicitly rejected by a United States District Court. The California Service Center denied an H-1B petition for a Market Research Analyst, finding that the OOH “…does not indicate that the degrees held by such workers must be in a specific specialty that is directly related to market research….” In Re: Residential Finance Corporation, WAC 11 215 55179 (CSC, Nov. 11, 2011).
In reversing the CSC and directing approval of the petition, the court stated: “Defendant’s implicit 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. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge…” citing Tapis Int’l v. I.N.S., 94 F. Supp. 2d 172, 175-76 (D. Mass. 2000) (rejecting agency interpretation because it would preclude any position from satisfying the “specialty occupation” requirements where a specific degree is not available in that field).
USCIS’s restrictive interpretation of the Occupational Outlook Handbook (OOH)
In determining normal degree requirements for entry into a particular position, USCIS gives a lot of deference to the Occupational Outlook Handbook (OOH), the publication of the Department of Labor. USCIS analyzes each position in accordance with the appropriate section of the OOH. Since it is impossible to describe all the existing position titles, the OOH provides description of the most common and broad categories of occupations.
H-1B employers should keep in mind that even though the title of the position may be Marketing Specialist, Business Development Specialist, Market Analyst or Consultant, or any related occupation, USCIS does not rely on the title, by itself. Each position title has a broader occupational category (SOC occupation title) which it falls under. Thus, most of the marketing occupations fall under Market Research Analysts.
USCIS tends to use overly restrictive interpretations of the OOH and finds that if the OOH indicates that a number of different academic degrees could qualify an individual for the position, then, by definition, the position cannot qualify as a specialty occupation.
However, the agency’s interpretations are hard to agree with. The pertinent section of the OOH, 2012-2013 Edition, Market Research Analysts, states the following in the pertinent part: “Most market research analysts need at least a bachelor’s degree, and top research positions often require a master’s degree. Market research analysts typically need a bachelor’s degree in market research or a related field. Many have degrees in fields such as statistics, math, or computer science. Others have a background in business administration, one of the social sciences, or communications.”
As shown above, the OOH provides a range of specific specialties/courses of study that Market Research Analysts can be trained in. It is impossible to allocate a single degree major that all Market Research Analysts should have. This is because the requirements of a particular job vary depending on the nature of the duties in light of the company’s business.
In its interpretations, the OOH ignores the realities of the current marketplace. Instead of identifying a single academic major, the OOH provides a number of academic field students can train in to acquire the body of knowledge necessary to perform the duties of Market Research Analyst.
OOH states that a bachelor’s degree in a limited number of closely related fields of study is a typical (normal) minimum educational requirement for entry into Market Research Analyst occupation, thus the position should qualify as a specialty occupation.
Preponderance of Evidence Standard of Review
The standard of proof in H-1B case is preponderance of evidence, which means “more likely than not.” Matter of Martinez, 21 I&N Dec. 1035 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965).
In our case, the evidence presented was more than enough to meet the burden of persuasion and to show that it is more likely than not that a bachelor’s degree in a specific specialty is normally a minimum requirement for entry into the occupation of Market Research Analyst.
Unfortunately, USCIS adjudicators are either not trained in the application of this standard or they refuse to apply it. USCIS’s overly restrictive interpretations of the term “specialty occupation” negatively impact the economic growth and the ability of U.S. companies to hire skilled foreign labor.
Motion to Reopen the Denial Decision
We filed a motion to reopen and a motion to reconsider the wrongful denial decision, where we argued that the petition should not have been denied in the first place as the petitioner had provided sufficient evidence to prove each of the criteria to qualify the position as a “specialty occupation,” and we provided supplementary new evidence to prove the requisite standard.
In the denial decision, USCIS blindly rejected the evidence presented and stated that the affidavits from business owners testifying that the degree requirement is common to the industry, job listings of competitors, evidence of the petitioner’s own hiring practices, and evidence of the complexities of the position were not sufficient to qualify the position as a specialty occupation. USCIS refused to even consider the Expert Letter from the University Professor stating the agency used its discretion to use the opinion letter as merely advisory.
In our experience, USCIS tends to scrutinize the H-1B petitions filed by start-up businesses and small companies. USCIS routinely states that “a business of the petitioner’s size does not require the services of an individual performing the duties of a specialty occupation,” based on nothing else but the adjudicator’s assumptions.
USCIS adjudicators often rely on the Adjudicator’s Field Manual (AFM), Chapter 31.3, section (g)(1), which enumerates a number of factors including the nature of the petitioner’s business in determining whether the position qualifies as a specialty occupation.
Petitioners should be very careful in responding to RFEs and arguing motions and should explain in plain language the need for the position, the petitioner’s capacity to employ the beneficiary to perform specialty occupation duties, and supplement the explanation with supporting documentation of current and future projects to be handled by Market Research Analyst, market research initiatives of the company, strategic plans, company’s profile, organizational structure, etc.
In our motion, we pointed out the deficiencies in the denial decision, emphasized the duties to be performed by Market Research Analyst, availability of specialty occupation work, and provided evidence to show the need for the position.
We were successful in convincing USCIS that the position of Market Research Analyst at ABC company does qualify as a specialty occupation, and the beneficiary was granted the H-1B status.
Dealing with USCIS, particularly in H-1B cases for Market Research Analyst and related occupations in small or start-up companies, can be very challenging and requires a lot of patience and cooperation of the petitioning organization.
Unfortunately, USCIS does not have an efficient complaint process which you could use to reverse clearly erroneous but factually disputable denial decisions. Thus, in case an erroneous denial has been made, the petitioner has to either go through the expense of filing another petition, finding alternative professional worker who could fill the position, or go through the process of filing a motion or an appeal.
Clearly, something has to be changed in USCIS’s adjudication process as a matter of policy, and we really hope that USCIS will increase supervisory review of the RFEs and the denial decisions, and will provide proper training to its adjudicators.
If you are thinking about applying for H-1B next April, we recommend to plan ahead. Our office will be happy to provide you a free initial consultation to discuss H-1B option for you.