By Marie Puertollano, Esq.
We filed an H-1B case on April 1, 2014 for Product Line Manager, a position in the “Market Research Analyst” category of USCIS. The beneficiary has a Bachelor’s Degree in Engineering. The petitioner (the employer) is involved in high tech manufacturing. A few weeks later, we received a Request for Evidence questioning two aspects of the case.
First, USCIS questioned the fact that the position qualifies as the “specialty occupation”. Many occupations in engineering, medicine or accounting are traditionally considered specialty occupations. However, occupations in sales or marketing included in the “Market Research Analyst” category are not normally viewed to be appropriate for H-1B. USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor to determine what occupational category a particular position falls under. USCIS then tries to match the duties of a particular position with the occupational classifications found in OOH. As such, Product Line Manager position fell into Market Research Analyst classification.
Secondly, USCIS stated that the degree in Engineering of the beneficiary is unrelated to the position of Market Research Analyst. USCIS also routinely consults the OOH to determine the particular position’s educational requirements to determine whether the beneficiary’s background is relevant for the occupation. The OOH states that 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, and computer science. Others have backgrounds in business administration, the social sciences, or communications.” Engineering is not mentioned as a possible field of study. This is why USCIS asked to “clarify how the beneficiary’s educational background qualified the beneficiary for the proffered position of Product Line Manager/Market Research Analyst”.
We timely answered to the Request for More Evidence (RFE) and the case was approved one week after! Here are some of the pointers we used in our RFE response.
I. The position is a specialty occupation
The regulations provide that in order to qualify as a specialty occupation, the petition must meet one of the 4 criteria:
1) A bachelor’s degree or the equivalent is the minimum requirement for entry into the occupation;
2) The degree requirement is common to the industry in parallel positions among similar organizations;
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.
1. A bachelor’s degree or the equivalent is the minimum requirement for entry into the occupation.
According to USCIS, the OOH indicates that the occupation of Market Research Analyst does not require a Bachelor’s degree in a “specific specialty” for entry level in the field because it lists several fields of study that the candidates can be trained in, such as Market Research, Statistics, Math, Computer Science, Business Administration, Social Sciences or Communication. Specifically, there is no general requirement for a Bachelor’s degree in a specific specialty (specific field of study). Rather it varies depending on the employer or industry.
In our response, we disputed the Service’s findings regarding the OOH’s interpretation. We stated that USCIS gives too much deference to the OOH and interprets the language of that publication too narrowly. It is impossible to allocate only one degree major that all Market Research Analysts should have. What matters is the specialized knowledge obtained in the pursuit of the degrees that qualifies the candidate for the job opportunity. In the RFE response, we argued that the specialized knowledge required to perform the job duties can be gained in several fields of study. However, that does not preclude the finding that the bachelor’s degree requirement is specialized enough to qualify for H-1B.
2. The degree requirement is common to the industry in parallel positions among similar organizations.
The petitioner has more than 200 employees and is involved in high tech and manufacturing. We were able to find other companies in the same industry with a similar number of employees that signed a supporting letter confirming that they hire individuals for the position of Market Research Analyst/Product Line Manager with a bachelor’s degree in Engineering. Many companies do, fortunately. We even obtained a letter from an expert in the business field confirming the degree requirement for the position of Product Line Manager/Market Research Analyst.
In addition, we have provided many online job ads from similar companies for the position of Product Line Manager, which all required a Bachelor’s degree in Engineering or Marketing as a prerequisite, which has greatly helped our case.
3. The employer normally requires a degree or its equivalent for the position.
Present and past job postings from the petitioner for the specific position on websites like Monster or Craigslist serve as best evidence to address this prong.
USCIS expects to see a list of past and present employees in a similar position and documentation proving that these employees hold at least a bachelor’s degree in a particular field of study.
For small sized companies recently created, the position of Market Research Analyst usually does not exist and the beneficiary is the first one that will holds the position of Market Research Analyst. However sometimes, the beneficiary was working on OPT for the petitioner in the same position and this fact could also be used.
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.
For this prong, USCIS expects to obtain a detailed explanation of the position of the beneficiary in lay terms. The duties must be complex and highly advanced to qualify under this prong. Work product must be produced to clearly show why the position is specialized and complex. Additionally, in our case, we had to explain in great detail why the position of Market Research Analyst requires a scientific background in engineering for this specific company. Newspapers articles about the company, reviews, and photographs of the facilities are all great evidence to support the claim that the company is unique in its field.
II. A Bachelor’s in Engineering is a possible degree for the position of Market Research Analyst
USCIS asked to “clarify how the beneficiary’s educational background qualified the beneficiary for the proffered position of Product Line Manager/Market Research Analyst”.
We answered that O’Net Online, the publication that USCIS also often consults, confirms that Product Line Manager is part of the Market Research Analyst category. The Market Research category includes a wide variety of positions. Not all Market Research Analysts are involved in Search Engine Optimization (SEO). Some Market Research Analysts/Product Line Managers are involved in the business development of products with complex engineering specifications and they cannot possibly perform their job without a scientific background. Even USCIS acknowledges that some Market Research Analysts have more technical jobs by naming statistics, math and computer science as related fields in the OOH. Therefore, Engineering is one of the possible fields of study for the position of Market Research Analyst.
In our conclusion, we reminded USCIS that the standard of review in H-1B cases is preponderance of evidence, which means that we only have to prove that it is “more likely than not” that the position qualifies as a specialty occupation. As we proved that it is more likely than not that the proposed position of Product Line Manager/market Research Analyst is a specialty occupation, the case should be approved. And the case did get approved at the beginning of July 2014.
If you have received a difficult Request for Evidence from USCIS in your particular case, don’t wait and talk to the attorney.