Demand for educated workers in the professions often outweighs the supply of qualified workers. To assist in filling this gap, Congress enacted the H-1B nonimmigrant visa classification for employers with jobs in a “specialty occupation.” A “specialty occupation” requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s or higher degree in the specific specialty (or its equivalent) to enter the occupation in the United States. Agency regulations provide criteria—any one of which is sufficient—for a petitioning employer to show that its job is in a specialty occupation.
In recent years, U.S. Citizenship and Immigration Services (USCIS) has been denying H-1B petitions for jobs that the agency previously approved as being in a specialty occupation. This case is representative. USCIS erroneously concludes that the employer did not meet any of the “specialty occupation” requirements after disregarding substantial evidence in the record that the employer required an advanced degree in a “specific specialty” because of the complexity and specialized nature of the job duties.
The plaintiff H-1B employer performs the finance and IT functions of its parent, a U.S.-based global company that develops, manufactures and supplies products and materials used by various high-technology industries. Through the petition, it seeks to extend the H-1B status of a long-time, valued employee. The plaintiff had promoted the employee to a BI Business Analyst job, in the same occupation, but with greater responsibilities than the prior job which had been previously approved for H-1B status three times. Plaintiff argues that the job meets all of the criteria for a specialty occupation.
USCIS reopened and approved the H-1B petition before even filing an answer in the case. Since the plaintiff H-1B employer received the relief it wanted, it filed a notice dismissing the suit.
The Council served as co-counsel with Debra A. Schneider and Matthew Webster of Fredrikson & Byron, P.A., under the Council’s program to encourage business immigration attorneys to file suit to challenge unlawful agency denials of employment-based petitions.
