Particularly as of late, USCIS has been giving harsh treatment to H1B petitions where it has applied an unduly narrow interpretation of what qualifies as a an “H-1B specialty occupation. This is attributable to an unreleased USCIS internal memo which states that unless the Occupational Outlook Handbook says *everyone* who holds a particular job must have a degree in a specific specialty, USCIS adjudication officers should deny the petition because it does not quality as a specialty occupation.
We are aware of this memo as it was obtained when the American Immigration Lawyers Association (AILA), made this memo public as a result of a settlement on September 18, 2019. Specifically, the memo stated that if “some employers hire workers with an associate’s degree… it suggests that entry-level computer programmer positions do not necessarily require a bachelor’s degree and would not generally qualify as a position in a specialty occupation,” and the memo indicated this framework applies to all occupations.
https://www.aila.org/File/Related/19091601w.pdf
This reading of what a specialty occupation means is inconsistent with actual unambiguous regulations, and recent successive cases where USCIS was declared wrong in applying this standard.
These cases are:
-Info Labs Inc., v. USCIS, 1:19-cv-00684 (D.C. March 31. 2020) https://nfap.com/wp-content/uploads/2020/04/Info-Labs-Inc.-Order-DDC.pdf
-3Q Digital, Inc. v. USCIS, 1:19-cv-00579 (D.C. March 6, 2020) https://nfap.com/wp-content/uploads/2020/04/3Q-Digital.Memorandum-Order-Granting-Summary-Judgement-002.pdf
We are aware of this memo as it was obtained when the American Immigration Lawyers Association (AILA), made this memo public as a result of a settlement on September 18, 2019. Specifically, the memo stated that if “some employers hire workers with an associate’s degree… it suggests that entry-level computer programmer positions do not necessarily require a bachelor’s degree and would not generally qualify as a position in a specialty occupation,” and the memo indicated this framework applies to all occupations.
https://www.aila.org/File/Related/19091601w.pdf
This reading of what a specialty occupation means is inconsistent with actual unambiguous regulations, and recent successive cases where USCIS was declared wrong in applying this standard.
These cases are:
-Info Labs Inc., v. USCIS, 1:19-cv-00684 (D.C. March 31. 2020) https://nfap.com/wp-content/uploads/2020/04/Info-Labs-Inc.-Order-DDC.pdf
-3Q Digital, Inc. v. USCIS, 1:19-cv-00579 (D.C. March 6, 2020) https://nfap.com/wp-content/uploads/2020/04/3Q-Digital.Memorandum-Order-Granting-Summary-Judgement-002.pdf
Successful Systems Analyst Appeal in Federal District Court
In Info Labs Inc., the occupation in question was computer systems analyst. The OOH states that although “many computer systems analysts have liberal arts degrees and gained experience elsewhere… a bachelor’s degree in computer or information science is common (and)… most computer systems analysts have a bachelor’s degree in a computer related field.” The Court concluded that “common” should be interpreted as “normally,” and that even if sometimes a “liberal arts degree with experience” is acceptable, that does not mean that a specialty degree is not “normally required.” As per the plain language of 8 CFR 214.2(h)(4)(iii)(A), that “A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position,” the court held:
“The Handbook’s statement that a bachelor’s degree in computer or information science is ‘common, although not always a requirement’ seems to support, rather than disprove, the proposition that ‘[a] baccalaureate or higher degree [in a specific specialty] or its equivalent is normally the minimum requirement for entry into the particular position’… Again, the regulatory criterion is not whether such a degree is always required, or whether some employers do not require it… the OOH further states that ‘[m]ost computer systems analysts have a bachelor’s degree in a computer-related field… If USCIS wants to discount OOH evidence indicating both that a specialty degree requirement is ‘common’ and that “most” people in the position have a degree in a computer-related field, it cannot simply rely on the OOH’s recognition that an unspecified number of contrary cases exist.'” Info Labs Inc., v. USCIS, 1:19-cv-00684,6-10 (D.C. March 31, 2020)
In Info Labs Inc., the occupation in question was computer systems analyst. The OOH states that although “many computer systems analysts have liberal arts degrees and gained experience elsewhere… a bachelor’s degree in computer or information science is common (and)… most computer systems analysts have a bachelor’s degree in a computer related field.” The Court concluded that “common” should be interpreted as “normally,” and that even if sometimes a “liberal arts degree with experience” is acceptable, that does not mean that a specialty degree is not “normally required.” As per the plain language of 8 CFR 214.2(h)(4)(iii)(A), that “A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position,” the court held:
“The Handbook’s statement that a bachelor’s degree in computer or information science is ‘common, although not always a requirement’ seems to support, rather than disprove, the proposition that ‘[a] baccalaureate or higher degree [in a specific specialty] or its equivalent is normally the minimum requirement for entry into the particular position’… Again, the regulatory criterion is not whether such a degree is always required, or whether some employers do not require it… the OOH further states that ‘[m]ost computer systems analysts have a bachelor’s degree in a computer-related field… If USCIS wants to discount OOH evidence indicating both that a specialty degree requirement is ‘common’ and that “most” people in the position have a degree in a computer-related field, it cannot simply rely on the OOH’s recognition that an unspecified number of contrary cases exist.'” Info Labs Inc., v. USCIS, 1:19-cv-00684,6-10 (D.C. March 31, 2020)
Successful “All-Other” Computer Occupation Appeal in Federal District Court
In 3Q Digital, Inc v. USCIS, the issue in question was specialty occupation, where the petitioner, an e-commerce/lead generation company filed and H-1B petition for a worker classified under SOC 15-1199.10, Search Marketing Strategists, a sub-classification of computer workers, all other. The employer stated that a degree in Economics, Marketing, Business, or another related field would be acceptable. The Court found USCIS abused its discretion in determining that a bachelor’s degree or higher is not normally the minimum requirement for the position.
In evaluating specialty occupation under subclause 1, although there was no OOH profile for the occupation, the Court firstly considered O*NET’s verbiage and statistics showing that “most” Search Marketing Strategist “require a four-year degree, but some do not,” when referring to the job zone, and that the majority of respondent had at least a bachelor’s degree. Furthermore, the court found USCIS substituted the word “always” for the word “normally” for the minimum requirement, and considered it a misapplication of the law, setting a higher standard than the regulation, therefore an abuse of discretion.
Secondly, the Court analyzed whether subclause 1 necessitated that the position requires a degree in a “specified field.” The Court ruled that “there is no requirement in the statute that only one type of degree be accepted for a position to be specialized… (and) diplomas rarely come bearing occupation-specific majors.” The court acknowledged some limits on what type of degree can qualify, and that “it can be inferred that there must sill be a relevant connection between the field of study and the demands of the position,” adding that “it would defy logic to say that a marketing position is a specialty occupation if the company allows the position to be filled by someone with a degree only in biology.” The Court reviewed O*NET, and referred to the “knowledge” section, which indicated that the position regularly requires knowledge of “sales and marketing, communications media, mathematics, and administration and management,” and the “skills” section, which listed “complex problem solving, systems analysis, and systems evaluation,” which shows the job requires fare more than “a four-year degree is generally required,” and that “appropriate majors can be easily inferred from the list of skills laid out,” where “an economics degree would naturally include the study of at least three of the listed categories of sales and marketing, mathematics, and administration and management,” and that other degrees like “marketing, communications, or mathematics” could qualify for the job, whereas a person with a “only a degree in biology would probably be deemed unqualified under the O*NET report, as biology is completely outside the realm of a Search Marketing Strategist-type job.” Based on the fact that the report “inherently provides some limitations on what degrees qualify a person” for the job, the Court found it sufficient to prove the existence of a specialty occupation, and for USCIS to use “the OOH over O*NET” to be “arbitrary and capricious,” and “an abuse of discretion,” and though there are some jobs where only a specific degree qualifies, this does not mean “that USCIS can deny a petition simply because there is no database that provides a dispositive list of precise college majors that qualify someone for a job. Specialty occupations are not limited to the hard sciences, and this Court will not tolerate attempts within the agency to artificially create such limits in direct contravention to the governing statute and regulation.”
USCIS should consider these cases persuasive authority. Should a petition be denied on the issue of specialty occupation, then under the Administrative Procedure Act, an appeal on this issue may be brought up to the Court which has been readily granting summary judgments on this issue, deeming the current USCIS framework to evaluate specialty occupation to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law.
In 3Q Digital, Inc v. USCIS, the issue in question was specialty occupation, where the petitioner, an e-commerce/lead generation company filed and H-1B petition for a worker classified under SOC 15-1199.10, Search Marketing Strategists, a sub-classification of computer workers, all other. The employer stated that a degree in Economics, Marketing, Business, or another related field would be acceptable. The Court found USCIS abused its discretion in determining that a bachelor’s degree or higher is not normally the minimum requirement for the position.
In evaluating specialty occupation under subclause 1, although there was no OOH profile for the occupation, the Court firstly considered O*NET’s verbiage and statistics showing that “most” Search Marketing Strategist “require a four-year degree, but some do not,” when referring to the job zone, and that the majority of respondent had at least a bachelor’s degree. Furthermore, the court found USCIS substituted the word “always” for the word “normally” for the minimum requirement, and considered it a misapplication of the law, setting a higher standard than the regulation, therefore an abuse of discretion.
Secondly, the Court analyzed whether subclause 1 necessitated that the position requires a degree in a “specified field.” The Court ruled that “there is no requirement in the statute that only one type of degree be accepted for a position to be specialized… (and) diplomas rarely come bearing occupation-specific majors.” The court acknowledged some limits on what type of degree can qualify, and that “it can be inferred that there must sill be a relevant connection between the field of study and the demands of the position,” adding that “it would defy logic to say that a marketing position is a specialty occupation if the company allows the position to be filled by someone with a degree only in biology.” The Court reviewed O*NET, and referred to the “knowledge” section, which indicated that the position regularly requires knowledge of “sales and marketing, communications media, mathematics, and administration and management,” and the “skills” section, which listed “complex problem solving, systems analysis, and systems evaluation,” which shows the job requires fare more than “a four-year degree is generally required,” and that “appropriate majors can be easily inferred from the list of skills laid out,” where “an economics degree would naturally include the study of at least three of the listed categories of sales and marketing, mathematics, and administration and management,” and that other degrees like “marketing, communications, or mathematics” could qualify for the job, whereas a person with a “only a degree in biology would probably be deemed unqualified under the O*NET report, as biology is completely outside the realm of a Search Marketing Strategist-type job.” Based on the fact that the report “inherently provides some limitations on what degrees qualify a person” for the job, the Court found it sufficient to prove the existence of a specialty occupation, and for USCIS to use “the OOH over O*NET” to be “arbitrary and capricious,” and “an abuse of discretion,” and though there are some jobs where only a specific degree qualifies, this does not mean “that USCIS can deny a petition simply because there is no database that provides a dispositive list of precise college majors that qualify someone for a job. Specialty occupations are not limited to the hard sciences, and this Court will not tolerate attempts within the agency to artificially create such limits in direct contravention to the governing statute and regulation.”
USCIS should consider these cases persuasive authority. Should a petition be denied on the issue of specialty occupation, then under the Administrative Procedure Act, an appeal on this issue may be brought up to the Court which has been readily granting summary judgments on this issue, deeming the current USCIS framework to evaluate specialty occupation to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law.
A New Test for Specialty Occupation
Consistent with the current caselaw presented, we propose the following test to evaluate specialty occupation under subclause 1:
1) Is the job found in the OOH? If yes, then
i) does it state a degree requirement that is ‘common/usual’ or state what ‘most’ degrees professionals in the field possess, and
ii) does it inherently provide some limitation on what degrees commonly qualify a person for this job.
2) If there is only an O*NET report, does it:
i) under Job Zone, state “most of these occupations require a four-year bachelor’s degree,” and
ii) when looking at the “knowledge” and “skills” section, does it inherently provide some limitations on what degrees qualify a person for this job? Can some nexus be shown between the stated degree requirement and the knowledge and skills section?
If the answer is yes to the sub-questions listed in either case, then the position should be deemed to be qualified as an H-1B caliber specialty occupation without further analysis.
Consistent with the current caselaw presented, we propose the following test to evaluate specialty occupation under subclause 1:
1) Is the job found in the OOH? If yes, then
i) does it state a degree requirement that is ‘common/usual’ or state what ‘most’ degrees professionals in the field possess, and
ii) does it inherently provide some limitation on what degrees commonly qualify a person for this job.
2) If there is only an O*NET report, does it:
i) under Job Zone, state “most of these occupations require a four-year bachelor’s degree,” and
ii) when looking at the “knowledge” and “skills” section, does it inherently provide some limitations on what degrees qualify a person for this job? Can some nexus be shown between the stated degree requirement and the knowledge and skills section?
If the answer is yes to the sub-questions listed in either case, then the position should be deemed to be qualified as an H-1B caliber specialty occupation without further analysis.