By Ekaterina Powell, Esq.
In the recent case Caremax Inc. v. Holder (N.D. Cal., 2014), the court granted the government’s motion for summary judgment and ruled that Public Relations Specialist offered to the beneficiary is not an H-1B caliber position.
The H-1B employer and the employee filed a declaratory relief action asking the District Court to determine whether the position of PR Specialist offered to the beneficiary constitutes a “specialty occupation” under the INA and if so whether the employee meets the qualifications to be employed in the position.
The District Court addressed two aspects of the case: (1) whether the position offered is a “specialty occupation” appropriate for H-1B classification and (2) whether the employee is qualified for the position.
This article addresses only the first part of the decision that presents the most interesting considerations.
There are four ways to establish that a position is a specialty occupation (8 C.F.R. § 214.2(h)(4)(iii)(A)):
(1) a bachelor’s degree or higher is the minimum requirement for entry into the
(2) a bachelor’s degree is the common requirement for an occupation in the
relevant industry, or the position is so complex that it can be performed only by an individual with a degree;
(3) the employer has typically required a degree or its equivalent for the position in the past, and
(4) the position’s responsibilities are so specialized that the employee must hold a bachelor’s degree or higher.
Bachelor’s degree is a minimum requirement for entry into the occupation
While the regulations only talk about attainment of “a bachelor’s degree,” USCIS’ position backed up by the courts is that the degree has to be in a “specific specialty.” What a specific specialty is, however, has not been clearly addressed.
Generally, USCIS looks at the Occupational Outlook Handbook, the publication of the DOL, to determine whether the position requires a bachelor’s degree and whether there are particular fields the individual can be trained in.
Most often, USCIS considers a profession to be a “specialty occupation” if there is a limited number of similar fields of study appropriate for the occupation. This is how USCIS finds for example that occupations in engineering, law, or medicine qualify for the H-1B.
What presents most challenges is the phrasing of the OOH where there is a narrow range of majors that is acceptable for the occupation but where those majors are not strictly related to each other.
Thus, petitioners are often struggling in obtaining H-1B visas for the employees in business, marketing or allied fields where OOH is vague when it comes to the fields of studies acceptable.
For PR Specialist, for example, the OOH states that a bachelor’s degree is required. However, the OOH provides a range of degree specialties such as “public relations, journalism, communications, English, or business” as acceptable majors.
In CareMax case, it was not disputed that the occupation requires a bachelor’s degree as the minimum requirement for entry into the occupation. The parties disagreed, however, as to whether a generalized bachelor degree requirement is sufficient to render the position specialized enough for an H-1B visa.
The court stated that while a bachelor’s degree appears to be the minimum requirement for entry into the profession, the OOH makes it clear that employers are not particularly concerned with what type of bachelor’s an applicant has achieved.
The court insisted that a position that requires applicants to have any bachelor’s degree, or a bachelor’s degree in a large subset of fields, can hardly be considered specialized, citing Fred 26 Importers, Inc. v. Dept. of Homeland Sec., 445 F. Supp. 2d 1174, 1179-80 (C.D. Cal. 2006).
The court thus accepted the government’s position that the position does not normally require a bachelor’s degree in a specific specialty because there is a wide range of degrees that is acceptable for employment as a public relations specialist, according to the OOH.
Bachelor’s degree common to the industry
The court went on to analyze whether a bachelor’s degree in a specific specialty is common to the industry by looking at the job advertisements presented by Petitioner.
In order to be successful with this criterion, one has to show that similar companies as Petitioner have parallel requirements for similar positions. In practice, this requirement is very hard to satisfy. Trying to find job advertisements from similar companies in the same industry for the same or similar positions is a tedious task by itself.
While the court in CareMax case only mentioned that the job advertisements are not from companies in “the same industry” as petitioner, USCIS normally asks for evidence that companies “similar to the petitioner’s in size and annual incomes” have similar educational requirements for the position. Since no company would ever post its annual incomes and the number of employees on the face of the advertisements, this requirement is hard to satisfy.
In addition, if the job advertisement lists more than one degree major acceptable for the position, the chances are – USCIS will consider that the advertisements do not support the contention that the position is a “specialty occupation.”
The court in CareMax also stated that the advertisements submitted in the case refer to a range of acceptable degrees and are not from companies in the same industry, that is why they could not support the specialty occupation finding.
The position is so complex or unique that it can only be performed by someone with a degree
The court in CareMax stated that since the wage offered to the beneficiary was at Prevailing Wage Level One, it is an entry level position that does not require exercise of independent judgment and does not involve complex tasks.
Thus, instead of relying on the petitioner’s job duties and the explanations on how the position is so complex to require a bachelor’s in a specific field as the minimum educational requirement for the position, the court relied on the entry level wage and the general DOL’s guidelines to state that the position at that wage level cannot possibly require complex skills.
Can an entry level wage support the specialty occupation standard?
The most important development in the case is the court’s assertion that an entry-level wage cannot support a specialty level occupation.
By stating that the wage offered to an H-1B employee is a determinative factor in deciding whether the position is complex enough to be worthy of H-1B classification, the court took the approach to combine USCIS H-1B regulations and the DOL’s guidelines on the wage levels.
It is not clear at this point whether USCIS will adopt such an interpretation of the specialty occupation or whether the assessment will be actually based on the specific duties and requirements for the position as opposed to the wage offered.
If the wage offered is a determinative factor as to whether the profession is a specialty occupation, then only those offered salaries at the higher prevailing wage levels could be considered to have complex tasks worthy of H-1B visa.
As a practical matter, the opposite analysis should also be true. If the wage offered to an individual is at the high prevailing wage level (levels II-IV), one could argue that the wage corresponds to the complexities of the position and supports the finding of the “specialty occupation.”
Previous Employment of PR Specialist by Petitioner
In CareMax, the Petitioner provided conflicted statements as to whether the company has hired PR Specialists in the past. While the company stated that Vice President used to hold the position of public affairs specialist, the court nevertheless dismissed the argument by stating that even if VP was employed in that capacity, his degree was not with English major as the beneficiary’s and thus could not support the company’s claim that it typically required a degree in English for the position.
As a practical matter, it is important to point out to USCIS if the beneficiary was previously employed by the company in the same capacity but in a different immigration status by providing copies of wage reports, pay stubs, W-2 and statements from the company with the beneficiary’s duties.
Similarly, if the company has employed other individuals in a different position but with the duties of PR Specialist, it is also helpful to provide that evidence to USCIS to point out that the company has had employees holding similar responsibilities with similar educational backgrounds.
Based on the analysis in CareMax, the court found that the position of PR Specialist offered to the beneficiary was not a specialty occupation and that, even if it was, the beneficiary was not qualified by virtue of his education and experience. The court therefore found that USCIS’ decision was not arbitrary, capricious or abuse of discretion and ruled for the government.
It is important to note that each case is decided independently. The court’s ruling does not mean that a position of PR Specialist can never qualify for H-1B. It only refers to the particular job offered to the beneficiary by CareMax Inc. as the employer. The same position offered at another company can qualify for H-1B. It all depends on the facts of each particular case and the presentation of evidence.
If you received a request for evidence or a denial decision from USCIS, contact an immigration attorney for the evaluation of your case. We will be happy to provide you with an assessment on your chances and recommend options available to you.
Caremax Inc. v. Holder (N.D. Cal., 2014) – District Court Case PR Specialist not a specialty occupation