How Special Is Special? Challenges to H-1B Specialty Occupation Classification
By Fausta Albi andLisa Baker Jones
With
AFM Practice Pointers to Avoid H-1B Requests For Evidence
By Victoria Duong
When the USCIS (or “Service”) issues a Request for Evidence challenging whether the H-1B position is indeed a “specialty occupation,” the RFE almost always contains language many practitioners are now intimately familiar with: Specialty Occupation means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a baccalaureate or higher degree or its equivalent, in aspecific specialty, as a minimum, for entry into the occupation in the United States.[1] Circular definition notwithstanding, we understand the challenges inherent in responding to these RFEs, especially for Market Research Analysts, Marketing Managers, Technical Sales Engineers, Computer Systems Analysts and Web Designers.
TWO TRENDS IN RFE ISSUANCE FOR SPECIALTY OCCUPATIONS
TREND #1: Mischaracterization of DOL Source Documents
“A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position. The Occupational Outlook Handbook (a publication of the United States Department of Labor), indicates that marketing managers 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. There is no standard for how one prepares for a career as a marketing manager and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred.” [Actual RFE language, no emphasis added.]
Fact: Applicant is working for a cloud computing company with more than $14 million in venture capital funding as a Product Marketing Manager in a competitive marketplace renowned for Internet Technology. Applicant possesses atechnical Bachelor’s degree from Columbia University and an MBA from Harvard Business School.
The OOH for Advertising, Promotions and Marketing Managers states that a bachelor’s degree is required for most[2] advertising, promotions and marketing management positions; it goes on to report that “[m]ost marketing managers have a bachelor’s degree. Courses in business law, management, economics, accounting, finance, mathematics, and statistics are advantageous.” Certainly an MBA program, particularly one as selective as that offered by Harvard Business School, would require courses that exceed this qualification.
The USCIS accurately asserts that the OOH does not provide a specific degree field of education, which opens the door for the claim that it is not a specialty occupation. However, the OOH does not take into account the geographic location of the position, the specific nature of the industry and its hiring tendencies, and further combines three professions into one generic classification. In short, the USCIS should not elevate the OOH as the ultimate determination of specialty occupation.
The data reported by DOL’s O*NET Online offers a separate classification for Marketing Managers, presenting a slightly more favorable analysis of the position. Under O*NET, Marketing Managers have an SVP of 7.0 to < 8.0, with a Job Zone of 4 (considerable preparation needed)[3], and a statement that “most of these occupations require a four year degree.”
The petition and RFE response contain the following supporting documentation: (1) Statement from company’s VP of Product & Marketing outlining the specialized duties of the position, the company’s educational requirements for the position (at least a Bachelor’s degree in Business or related field with a preference for a technical Bachelor’s and graduate Business training), and his own educational background, which comports with the company’s requirements; (2) corporate organizational chart, showing reporting relationship; (3) Harvard Business School professor of business explanation of how required degree coursework prepares one for the position in question; (4) statement from industry recruiter, explaining that the position requirements are industry standard; (5) publically available internet job search website advertisements for like positions with like requirements ; and more.
At time of publication, this case remains pending with USCIS.
TREND #2: Single Versus Multiple Degree Fields
Many IT and financial services positions require an advanced degree in Business, following a technical undergraduate degree program. This tends to create problems when developing a filing strategy for a specialty occupation, even though this trend points toward a position being more specialized than a one having a simple bachelor’s requirement.
As we know, in order for a position to be considered a specialty occupation, it must meet one of the following criteria:
(1)A baccalaureate or higher degree, or the equivalent, is normally the minimum requirement for a particular position;
(2)The degree requirement is normal in parallel positions among similar organizations or alternatively that the particular position is so complex that a degree is required;
(3)The employer normally requires a degree or the equivalent; or
(4)The nature of the duties is so specialized or complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.
See 8 CFR § 214.2(h)(4)(iii)(A). What this section does not contemplate is when multiple degree fields are (1) the normal minimum requirement for the position; (2) normal in parallel positions or for complex positions; (3) the employer’s normal requirement; or (4) required because the nature of the duties are so specialized or complex that multiple degrees or multiple degree fields are necessary to perform them.
The position: MDM Solutions Architect. Master Data Management comprises a set of processes, governance, policies, standards and tools that consistently defines and manages the master data (i.e. non-transactional data entities or the products, accounts and parties for which the business transactions are completed) of an organization.[4] It typically involves data management across multiple systems within an enterprise. The MDM Solutions Architect needs an IT background, with a deep understanding of business administration.
The applicant: An H-1B transfer moving from MDM Solutions Architect position at Company A to MDM Solutions Architect at Company B. Applicant has an MBA from a United States university, with a business undergraduate major, which includes some technical coursework (but not enough for a standard educational equivalency).
What is the proper Standard Occupational Classification for a hybrid position like this one? The “normal” Architect position could be classified as Computer Occupations, All Others under the sub category of Computer Systems Engineers/Architects[5] (which presents specialty occupation issues of its own, since the occupation has no Education and Training Code or O*NET job zone), or under another Software Developer/IT position classification. However, when the applicant does not possess a degree that comports with the SOC, RFE warning bells start to sound.
The way USCIS processes H-1B petitions, in connection with the increasing number of specialty occupation RFEs means that attorneys have to approach these hybrid cases carefully. Where there is no “normal” SOC for positions that require multiple degrees or degree fields, consider working backwards, and start with the applicant’s degree rather than selecting the SOC classification that best comports to the position. For enterprise-wide positions that have both a business and IT component, look to the less standard classifications, like Operations Research Analysts.
Under the OOH for Operations Research Analysts “[m]any schools offer bachelor’s and advanced degree programs in operations research, management science, or a related field. Many operations research analysts have degrees in other technical fields, such as engineering, computer science, mathematics, and physics.” This is a Zone 5 occupation, with an SVP of 8 and an accompanying higher prevailing wage. Incidentally, the Operations Research Analyst position crosswalks under O*NET to Market Research Analysts and Marketing Specialists.
PRACTICE POINTERS
The above RFE trends raise a number of concerns. The below practice pointers review in further detail the more problematic issues, and provide suggestions for addressing them.
ISSUE: Undue emphasis on the term “specific”
In the statutory definition of “specialty occupation”
As noted above, the USCIS is focusing not only on whether the position requires at least a baccalaureate degree or its equivalent, but appears to be putting undue emphasis on the term “specific” in the statutory definition of “specialty occupation.” The statute defines specialty occupation as requiring the
(A) Theoretical and practical application of a body of highly specialized knowledge, and
(B)Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the U.S. [6]
Even in occupations for which it is clear at least a baccalaureate or its equivalent is a minimum requirement, the USCIS is turning its focus to whether the degree required is specific enough to qualify the position as a specialty occupation. In some cases, the USCIS seems to be interpreting “specific” as limiting therelated degree to one field, which isunreasonably restrictive and disregards the individual employer’s needs.
For example, in a recent denial of an H-1B in the occupational category of Postsecondary Education Administrator, which per the OOH clearly requires at least a baccalaureate degree, if not a graduate degree, the USCIS stated:
There is no apparent standard for how one prepares for a career as an Associate Admissions Officer and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, the proffered position cannot be considered to have met this criterion [that a baccalaureate degree is normally the minimum requirement for the position]. It is noted that Petitioner’s cover letter states, ‘…and require that individual to have at a minimum, a bachelor’s degree in Management, Finance, or a related field.’ Therefore, the Petitioner does not require a specific specialty based on the letter.[7]
In the above case, the USCIS states that the requirements vary by employer; cites the limited and related fields which the employer (a graduate level business school)attested are acceptable for the position; then somehow concludes that the Petitioner does not require a degree in a specific specialty. The only explanation for this reasoning is that the adjudicator believes that a specific specialty is defined as only one possible degree. Interpreting “specific specialty” in INA §214(i) as restricting the related degree to one per job title does not reflect the reality of either higher education or the business world, thus frustrating the intent of the H-1B classification and yielding improper results. For example, an individual offered the position of Director of Research and Development for a biotechnology company would presumably not qualify for a “specialty occupation” with a biology degree, if the OOH indicated that individuals with degrees in chemistry or biostatistics would also be qualified.
In short, the USCIS is imposing more restrictive requirements on this criterion than are found in the regulations, which is both ultra vires, and an untenable approach from a policy standpoint.
Practice Pointer: Useful citations to counter the above erroneous interpretation of “specific specialty”: Tapis Int’l v. INS, 94 F Supp. 2d 172 (D. Mass 2000); andResidential Finance Corporation v. USCIS, 839 F.Supp.2d 985 (S.D. Ohio 2012).
Although the District Court decisions are not legally binding precedent on the USCIS, they offer persuasive authority in that the USCIS has before tried and failed to provide a rational basis for its restrictive interpretation of “specific specialty.”
In Residential Finance, the Court found that the USCIS’ interpretation of “specific specialty” was “too narrow” to be legally viable.[8] In fact, the Court found that the USCIS’ interpretation of “specific specialty” was so restrictive that it amounted to an abuse of discretion and could not pass the rational basis test, the lowest level of scrutiny applied by federal courts and thus the easiest for the Service to satisfy. The Court stated “there is no apparent requirement that the specialized study need be in a single academic discipline as opposed to a specialized course of study in related business specialties.”[9] Furthermore, the Court explicitly rejected the USCIS’ “implicit premise that the title of a field of study controls,” finding that such an interpretation “ignores the realities of the statutory language involved and the obvious intent behind them,” and that the “knowledge and not the title of the degree is what is important.”[10]
In Tapis Int’l, the Court rejected the USCIS’ interpretation of specific specialty because it would preclude any position from satisfying the "specialty occupation" requirements where a specific degree is not available in that field.[11]
Practice Pointer: Be aware that the AAO in recent decisions has upheld a more restrictive interpretation of specific specialty.See, e.g. Matter of ____, WAC 1000850309 (AAO, April 7, 2011; Matter of _____, WAC 0814853409 (AAO, January 5, 2010). The common thread in these cases is that if a bachelor’s degree in more than one undergraduate major may satisfy the requirements for the proffered position, the position does not qualify as sufficiently specialized for H-1B classification.
Practice Pointer: The USCIS is also likely to refer toMatter of Michael Hertz in support of a restrictive interpretation of “specific” specialty. Matter of Michael Hertz held that an individual with a “degree of generalized title, such as business administration or liberal arts, without further specification, does not establish eligibility.”[12]This statement reflects a concern that a position calling for a general degree, absent further specification, is not sufficiently specialized in a particular industry to qualify for a specialty occupation. Counsel may distinguish this case by pointing out that the regulations at 8 CFR §214.2(h)(4(ii) in fact list “business specialties” as a field which requires the theoretical and practical application of a body of highly specialized knowledge. Also, depending on the facts of the case, counsel may be able to clearly show why, for example, a Masters of Business Administration is required for an Admissions Officer for a Business School.
Practice Pointer: Present the USCIS with its own guidance regarding the deference due to the petitioner and its ability to define its own business needs: “When determining whether a particular job qualifies as a specialty occupation, USCIS does not use a title, by itself. The specific duties of the offered position combined with the nature of the petitioning entity’s business operations are factors that USCIS considers.” [13]
Issue: Undue focus on the OOH as the primary source regarding a degree requirement
As with the trends noted above, while the specialty occupation RFEs do provide the petitioner with the alternative regulatory criteria for determining whether a position qualifies as a specialty occupation, they tend to treat the DOL’s Occupational Outlook Handbookas the primary, if not definitive, source for determining whether a degree is commonly required for the position in the industry. This is despite the fact that the OOH, while perhaps a good starting point for the inquiry, cannot possibly consider an individual employer’s specific needs and should certainly not supersede them. Further, the RFEs sometimes mischaracterize the information in the OOH.
For example, in a recent RFE for a Market Research Analyst, the USCIS stated “While the 2012-2013 edition of the OOH reports that a baccalaureate degree is the minimum educational requirement for many market and survey research jobs, it does not indicate that the degrees held by such workers must be in a specific specialty that is directly related to market research, as would be required for the occupational category to be recognized as a specialty occupation.” The RFE goes on to state that because ‘The requirements appear to vary by employer as to what course of study might be appropriate or preferred…the proffered position cannot be considered to have met this criterion.”
Practice Pointer: A useful citation in this situation is Unico American Corp.,[14] which held that USCIS should give deference to the employer’s view, should consider fully the employer’s evidence and should not rely simply on “standardized government classification systems, [such as the Occupational Outlook Handbook].”
Practice Pointer: If the position is one which USCIS has been questioning recently as a specialty occupation, decide whether to “frontload” the initial filing. This is always a strategic/ judgment call, as counsel must weigh the possibility that frontloading may lead the Service to believe that the petitioner is concerned that the position may not qualify as a specialty occupation. On the other hand, frontloading may head off the RFE, saving time, costs, and the client’s frustration in the process.
If the decision is made to frontload the initial filing, if primary source documents indicate a degree is required, proactively include a printout of the relevant OOH section in the initial H-1B filing, highlighting the educational requirements. Support that with a DOL Office of Foreign Labor Certification O*Net listing with zone classification and perhaps even the Specific Vocational Preparation (SVP) classification for the position.Other optional supporting documents can be taken from the list which is generally provided in the RFE: a detailed job description, including a chart outlining specific duties, the percentage of time spent on each duty, and how the beneficiary’s specific education is needed to fulfill those duties; internal job postings for prior similar positions with the same petitioner; job postings from similar companies requiring a degree in a few related fields; a letter from an expert in the field attesting to the minimum requirements necessary to enter the profession; examples of work product required for the position, demonstrating the complexity; etc.
Practice Pointer: Watch for USCISmischaracterization of source documents, and directly counter them. For example:
The OOH, 2012-2013 Edition for the occupational classification of Market Research Analysts states: “Market research analysts typically need a bachelor’s degree in market research or a related field.”The OOH goes on to define what is considered a related field for this position. Further, in the context of Market Research Analyst positions, fields such as Statistics or Computer Science are not considered disparate fields. If the position is data processing driven, education in Statistics and Computer Science are directly related to the position. Whereas business development driven positions would favor an educational background in Business, Marketing or Market Research; all directly related disciplines. The fact that this occupation can focus on a particular aspect of Market Research Analysis depending on the position does not disqualify the position from being a specialty occupation requiring at least a bachelor’s degree in a related field.