Court reverses USCIS interpretation of H-1B ‘specialty occupation’

24 Feb 15

UNITED STATES

A federal court in Seattle has ruled that the position of “market research analyst” falls within the definition of “specialty occupation” for purposes of obtaining an H-1B visa.

In a rare move, the court found that U.S. Citizenship and Immigration Services abused its discretion in denying the visa petition and further ordered the agency to grant the H-1B petition.

USCIS “failed to articulate a satisfactory explanation for [its] denial based on the record it had before it,” wrote U.S. District Court Judge Ricardo S. Martinez in an 11-page ruling. “USCIS thus abused its discretion in reaching a decision that was not in accordance with its own interpretation of the statutory and regulatory framework, and its decision shall be reversed.”

The employer in the case, Raj & Company, based in Yakima, Wash., sought to sponsor Rashma Kajal, a citizen of Fiji, for the position of market research analyst to assess opportunities to expand its hotel and convenience store business. The company filed a petition for an H-1B visa on behalf of Kajal, who holds a bachelor of science degree and a certificate in business management and marketing from Brigham Young University–Hawaii. USCIS responded with a request for evidence, and the company submitted additional information about its business operations, need for the position, industry practices and the company’s history of employing a market research analyst.

Employers sponsoring foreign nationals for H-1B petitions must show that the positions meet legal definitions of “specialty occupations.” The immigration statute defines a specialty occupation as requiring “highly specialized knowledge” and at least a bachelor’s degree in the specified specialty or its equivalent as a minimum requirement for entry into the occupation.

USCIS denied the employer’s petition, finding that market research analyst did not qualify as a specialty occupation. The agency determined that even though a bachelor’s degree is typically needed for the position, the position does not require a degree in a specific specialty as a normal minimum for entry into the occupation.

The court, however, said the statute’s definition of specialty occupation “does not require a single, specifically tailored and titled degree,” evidenced by the fact that the statute allows an equivalent to be accepted where a specifically tailored degree is not available.

“While an agency has considerable leeway to interpret statutes and regulations it enforces, it is not at liberty to read plain language out of a statute,” the court said.

This is the second court to strike down a USCIS denial of an H-1B petition for a market research analyst based on the definition of specialty occupation. In 2012, a federal court in Ohio similarly found that USCIS wrongly denied an H-1B petition filed by a company that offered a market research analyst position to a 25-year-old foreign national who graduated from a U.S. university with a bachelor of science degree in marketing and finance, and completed coursework in financial and managerial accounting, spreadsheets, databases, statistical concepts, marketing behavior, marketing research, and money markets. That court also ordered USCIS to grant the H-1B petition.

“The knowledge and not the title of the degree is what is important,” U.S. District Court Judge Gregory L. Frost wrote in that ruling. “Diplomas rarely come bearing occupation-specific majors.”

BAL Analysis: The court cases are a direct result of a recent change in interpretation of “specialty occupation” by the Administrative Appeals Office. Since 2009, the AAO has repeatedly imposed a requirement of a single, specific academic degree in a tailored major – a departure from its long-held interpretation that specialized knowledge can be gained through coursework in various academic disciplines regardless of the label or title on the academic degree. Where agency interpretation improperly narrows the definition of visa criteria, employers may resort to federal courts to review visa denials. Two courts have now reinforced the AAO’s previous interpretation that the plain meaning of the immigration statute and regulations, as well as the Labor Department’s definitions of job qualifications in its Occupational Outlook Handbook, do not require a specially tailored academic degree to qualify as an H-1B specialty occupation.

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