Proposed Changes to the Evidence Required for Establishment of H1B "Specialty Occupation"; Continued Reliance on OOH; Expanded Authority of DHS To Compare LCA Position With H1B Petition, Etc. Mean Tightened Adjudication Standards.

by Alan Lee, Esq.

This is the third of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

After making the proposal that regardless of how many entities sponsor a person, that person would only have one registration, USCIS says that the new program might not be ready for next year even though other parts of the proposed rule could be finalized. Most of the other parts are as follow in this and the final article:

USCIS will allow different degrees to qualify an individual for specialized occupation, but says that a petitioner has the burden of establishing how each field of study is in a specific specialty providing a body of highly specialized knowledge directly related to the duties and responsibilities of the particular position.

It gave an example that a petition with the requirement of any engineering degree in any field of engineering for the position of software developer will generally not satisfy the requirement.

It also gave the hypothetical that if such a position requires a bachelor’s degree in an unspecified “quantitative field” (which could include mathematics, statistics, economics, accounting, or physics), “The petitioner must identify specific specialties, such as the majors or degree fields, within the wide variety of “quantitative fields” and establish how each identified degree in a specific specialty provides a body of highly specialized knowledge that is directly related to the duties and responsibilities of the software developer position.”

Does this mean that USCIS could ask the petitioner to justify how each of 4-5 degrees qualify an individual for the specialty occupation? This would be an onerous burden.

Other than USCIS’ concession that a variety of degrees may be able to qualify as per Madkudu et al v. USCIS et al. 5:20-CV-2653-SVK (ND Cal. 8/20/21), (but with the possible idea that petitioners will have to delineate the variety of degrees and how they qualify for specialty occupation), USCIS is conceding that “normal” in the regulation standard (that a bachelor’s degree should be one which is normally required for specialty occupation) does not mean “always” – that as proposed, “normally” will mean “conforming to a type, standard, or regular pattern” and is “characterized by that which is considered usual, typical, common, or routine”. USCIS quotes Innova Solutions v. Baran, 983 F.3d 428 (9th Cir. 2020) that “normally does not mean always” and there is no significant difference between the synonyms “normal”, “usual”, “typical”, “common”, or “routine”.

However, USCIS will continue its practice of consulting the OOH (Occupational Outlook Handbook) on whether a degree is actually required for the occupation. The difficulty in the past has been the primary reliance of USCIS on the OOH when the Handbook was not designed to be relied upon for such, and it appears that the agency will once again give it primacy in putting it forth first in saying that “USCIS will continue its practice of consulting the US Department of Labor’s… Occupational Outlook Handbook and other reliable and informative sources submitted by the petitioner, to assist in its determination regarding the minimum entry requirements for positions located within a given occupation.”

The four criteria of 8 CFR §214.2(h)(4)(iii) for determining “specialty occupation” are changed in that qualifying under one will no longer be seen as satisfying the definition of specialty occupation as the language says that one of the criteria must also be satisfied to meet the definition of specialty occupation.

The first criteria that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position would be changed to a bachelor’s degree in a directly related specific specialty or its equivalent and the word “position” would be changed to “occupation” so that it would now read “A US baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular occupation”.

The second criteria that 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 is changed to “A US baccalaureate or higher degree and a directly related specific specialty, or its equivalent, is normally required for parallel positions among similar organizations in the employer’s United States industry”.

The third criteria that the company normally requires a degree or its equivalent for the position is changed to “The employer, or third party if the beneficiary will be staffed to that third party, normally requires a US baccalaureate or higher degree in a directly related specific specialty, or its equivalent for the position”.

The fourth criteria combines the left out portion of the present second criteria to add in the word “unique” which was in the second criteria so that the fourth now reads “The specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform the duties are normally associated with the attainment of the US baccalaureate or higher degree and a directly related specific specialty, or its equivalent.”

Although there is a reference to the Madkudu settlement that allows persons with bachelor’s degrees with minors in the subject matter or other equivalents to qualify for H-1B’s, the only reference to the decision in footnote 18 was actually a negative remark in the settlement agreement that “[i]f the record shows that the petitioner would consider someone is qualified for the position based on less than a bachelor’s degree in a specialized field directly related to the position (e.g., an associates degree, a bachelor’s degree in a generalized field of study without a minor, major, concentration, or specialization in market research, marketing or research methods… or a bachelor’s degree in a field of study unrelated to the position), then the position would not meet the statutory and regulatory definitions of specialty occupation….” The rest of the language of the preamble to the proposed rule indicates that there will be a stricter standard on deciding what qualifies as the minimum education for specialty occupation.

Where an H-1B will be placed at a third-party organization, the actual work to be performed by the beneficiary must be in the specialty occupation and it is the requirements of the third-party and not the petitioner that are most relevant in determining whether the position is a specialty occupation. USCIS notes the difference between “staffed” meaning that the beneficiary is contracted to fill a position in the third party’s organization and become part of that third party’s organizational hierarchy and a beneficiary who provides services to a third party.

DHS is proposing that it will have its own authority to ensure that the LCA properly supports and corresponds with the accompanying H-1B petition. It notes that current DHS authority is only stated in DOL and not DHS regulations. This has been a bone of contention between immigration practitioners and USCIS as to the scope of its authority in attempting to match the LCA SOC code with the job title and duties. According to BingChat (please forgive the writer for using the source), the number of SOC codes has only risen from 821 to 867 from 1980 to the present. It is obvious that the number of new created jobs has grown infinitely since that time and employers many times have a difficult task in attempting to target their jobs within a particular SOC code. USCIS’ attempting to give itself more authority to nitpick over particular matches will not help. If this part is implemented, it should include a requirement that USCIS designate an alternate SOC code in any RFE or NOID with reasoning behind why it believes that its choice is more appropriate than the petitioner’s.

Commenting on the other above topics, the proposed rule should define more clearly what is considered equivalent education in accordance with the Madkudu settlement; deemphasize reliance on the OOH on what are minimum requirements to an occupation by listing the type of sources can be used and then saying “including the OOH”; and clarify whether a petitioner with an occupation that can be met with different degrees as stated in the petition will be required to justify each degree or only the relevant degree of the beneficiary which relates to the position.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2023), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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