Visa Lawyer Blog
Another victory for our office appealing a tough H1B denial, consistency pays eventually. This article was prepared by attorney Ekaterina Powell from our office.
H-1B is a “specialty occupation” work visa. Traditionally, occupations in law, medicine, sciences and engineering are considered specialty occupations. However, the statute and the regulations contain provisions that allow other professions to be considered specialty occupations if certain conditions are met. For example, if a baccalaureate in a specific specialty (or its equivalent) is normally the minimum requirement for entry into the particular position, then the position should be viewed as a specialty occupation.
USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor in its analysis on whether a particular position can be classified as a specialty occupation. Unfortunately, USCIS continues to use its overly restrictive interpretations of the H-1B regulations when it comes to the occupations in marketing, public relations, or management and business related professions.
EXAMPLE OF AN H-1B CASE FOR A PUBLIC RELATIONS SPECIALIST
Below is an example of a successful complex H-1B case handled by our office. A tourism company consisting of 5 employees filed an H-1B petition for Suzette, a French citizen with a Master’s degree in Marketing and Communications to work for the company in the position of Public Relations Specialist.
USCIS issued a Request for Evidence in the case asking for additional evidence establishing that the position of a Public Relations Specialist is a specialty occupation. The response to the request of evidence along with the supporting evidence was timely received by USCIS.
After several months (!), the employer received a decision denying the H-1B petition because, in the opinion of the officer, the position did not qualify as a specialty occupation. The denial not only quoted boilerplate language unrelated to the case, but also included reasoning that was taken from a completely different case. The adjudicator obviously did not pay attention to the specific facts of the case and issued a capricious decision not warranted by the proper analysis of the law.
Our office filed a Motion to Reconsider the Denial Decision. The case was accepted for review and five days thereafter the case was approved!
MOTION TO RECONSIDER
In our Motion to Reconsider, we were able to show that the law was inappropriately applied by USCIS in reaching the unfavorable decision.
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 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.
In reality, USCIS is so restrictive in its analysis of the 4 criteria that, if you consider their interpretations, it is impossible for any position to qualify as a specialty occupation.
A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position of Public Relations Specialist. The first prong to analyze is whether a bachelor’s degree in a specific specialty is normally the minimum requirement for entry into the occupation. The problem with USCIS’ interpretation of this criterion is the fact that the Service gives too much deference to the OOH and interprets the language of that publication too narrowly.
For example, in the specific case of a Public Relations Specialist, USCIS stated that, as shown in the OOH, “although a baccalaureate level of training is offered, the position of Public Relations Specialist 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. As a result, the proffered position cannot be considered to have met this criterion.”
Even though the Service agreed to the fact that a bachelor’s degree is normally required by the industry, the Service refused to classify the position as a specialty occupation because the OOH does not provide for one degree specialty that is appropriate for all PR Specialists.
It is important to note that the specific specialty requirement is not in the INA or the regulations; however, the Service has consistently required the degree requirement to be in a specific field in order to qualify for the “specialty occupation”. This Service’s interpretation has been upheld by the courts.
In our Motion, we disputed the Service’s findings regarding the meaning of the OOH. The OOH provides a limited range of specific specialties that Public Relations Specialists can be trained in. Moreover, the OOH limits these specialties to communications-related field. Therefore, a Public Relations Specialist has to have a bachelor’s degree in one of the following fields: public relations, journalism, marketing, or communications.
The Service suggests that any occupation that allows for more than one degree specialty will not satisfy the requirements of a specialty occupation. However, it is impossible to allocate a single degree major that all Public Relations should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis.
The specific specialty should not be viewed narrowly by allowing only one degree concentration, but can be found if OOH provides a limited range of acceptable fields of education.
For example, Software Engineer has continuously been recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various degrees in related fields, such as computer science, software engineering, physics, computer information systems, or mathematics.
Similarly to Software Engineers, Public Relations Specialist position may also be filled by professionals holding a degree in communication-related field, such as public relations, journalism, marketing, or communications. Therefore, based on the foregoing analysis of this criterion alone, Public Relations Specialist is a specialty occupation as the OOH provides a limited range of degrees that are acceptable for Public Relations Specialist position.
The degree requirement is common to the industry in parallel positions to that of Public Relations Specialist among similar companies
The second criterion to classify the position as a specialty occupation is establishing that the degree requirement is common to the industry in parallel positions among similar companies.
In order to satisfy the requirement, the Service requested job listings or letters from similar companies hiring PR Specialists with the same degree requirement. In addition, USCIS requested evidence from the professional associations in the PR field that made a degree a requirement for entry into the field.
Job Listings
With the Response to the Request for Evidence, we submitted numerous job listings, letters from other small tourism agencies, and letters from the professional associations noting the degree requirement for PR Specialists. In addition, we submitted numerous prior H-1B approvals with their corresponding supporting documents to show the Service’s policy to consider the position of PR Specialist to be a “specialty occupation”.
USCIS found that evidence insufficient to satisfy the requirement because, in the opinion of the Service, 22 job listings are not sufficient evidence of a degree requirement common to the industry. In addition, the Service stated that the hiring employers should be similar in size (by number of employees) and annual incomes to the petitioner. In the denial, USCIS stated that it was not clear from the face of the advertisements if the employers were similar to the petitioner’s business.
So, what is the sufficient number of advertisements? Interestingly, USCIS does not provide any guidance on this and only states that each case is analyzed on a case-by-case basis. Such uncertainty gives too much power to USCIS to deny the petitions even when extensive evidence is provided.
Unfortunately, review of inappropriate denial decisions can take months and costs a lot of money. Therefore, not many petitioners are willing to go through the process. Refiling the case, in the hope that another, more reasonable, adjudicator will review the petition, is not always an option because it is associated with paying the filing fees all over again, which are not refundable, and the adjudication may take a long time.
Often times, employers need workers who could fill the position soon, and, therefore, the employers may not be willing to go through this lengthy process again and, as a result, they lose the much needed talent.
It is the author’s opinion that, following the Service’s logic, it is practically impossible to meet the overly restrictive agency’s standards. Where would you find a job listing that shows how many employees are in the company and disclosing the company’s annual incomes? This is not a realistic requirement and it can never be satisfied.
Letters from Business Owners
In addition to the job listings, with the RFE response we provided letters from the owners of similar businesses to that of the petitioner. The business owner attested to the fact that his company hired PR Specialists with the particular degrees. The denial stated that no corroborative evidence was provided to prove that the business owner actually hired someone in the PR position.
This adjudicator’s statement appeared from the thin air because the RFE did not ask for corroborating evidence in that respect. Denying the petition based on fact that the corroborating evidence along with the statement was not provided is abuse of adjudicator’s discretion not supported by the law and the current policies.
Letters from the Professional Associations in the Field
In addition, the Service stated that the letters from the professional associations in the field of public relations that we provided are also insufficient to prove industry standard. The decision states “ the record does not include sufficient evidence to substantiate that the business representative is associated with the petitioner’s industry”.
This statement has no merit. The statements from the professional associations were provided to show that professional associations in the field of public relations concur on the fact that it is common to all industries to require candidates for the positions of Public Relation Specialists to have a baccalaureate level of education in a communications-related field.
Public Relations Specialist position is so complex or unique that it can be performed only by an individual with a degree
As an alternative to demonstrating that the degree requirement is common to the industry in parallel positions among similar organizations, the petitioner may show that the proffered position is so complex or unique that it can only be performed by an individual with a degree.
With the RFE response, we provided numerous materials of the petitioner on the public relations campaigns, current projects and events of the company along with promotional materials and showed that the beneficiary will have discretionary decision-making authority and will exercise independent judgment. Therefore, the position is complex and requires a professional with a bachelor’s degree in a specific field to fill the position.
However, when the petitioner is a small company, USCIS scrutinizes the H-1B petition even more justifying its decision by a statement that the company does not have organizational complexity that would require the services of a PR professional with a bachelor’s degree.
The petitioner normally requires a degree in a specific specialty or its equivalent for the position of Public Relations Specialist and similar positions
For the last criterion, the RFE asked the petitioner to present evidence showing the number of persons employed in similar positions and showing how many of those persons have a baccalaureate or higher degree.
With the RFE response, the petitioner submitted the resume, copy of the degree and H-1B approval notice of a Marketing Manager employed by the petitioner.
Marketing Manager’s duties were related to that of a PR Specialist. However, even that was not enough to satisfy the onerous standards.
THE PETITIONER HAS PROVEN BY PREPONDERANCE OF EVIDENCE THAT THE POSITION QUALIFIES AS A SPECIALTY OCCUPATION
In our motion, we pointed out that analysis of each and every criteria of “specialty occupation” and the facts of this case show that the Service has used the inappropriate standard of review in reaching its decision. 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.
According to the analysis in the motion, we have proven that it is more likely than not that the proposed position of Public Relations Specialist is a specialty occupation.
Conclusion
The need for a reform and extensive training of USCIS officers to ensure consistency in adjudications is evident. USCIS continues to use its overly restrictive interpretations and uses its discretion sporadically without providing a rational basis for the denials.
In our Motion to Reconsider in this case, we were able to show the specific instances where the law was inappropriately applied by USCIS and that the facts of the case were not properly reviewed. As a result of the Motion, the wrongful denial decision was overturned and the case was finally approved!