USCIS Sends a Message to Aspiring Workers in a Well Recognized H-1B Specialty: Go Home. By Roger Algase

One of the most greatest lines in all of classical Roman poetry is Horace's famous Non omnis moriar ("I shall not wholly die"). 2,000 years later, House Republicans seem to be doing everything in their power to sure that this Latin maxim will not apply to millions of today's Latino and other minority immigrants who are anxiously waiting for Senate-passed CIR bill, S.744, to become law.

Or to use another classical analogy, the House may be preparing the same fate for CIR after it leaves the Senate that was in store for Julius Caesar when he entered the Senate chamber in 44 B.C. Et tu, Boehner?

But while this drama is playing out over the next few months, or perhaps many months, it is easy to lose sight of the fact that regardless of whether CIR passes or not, America's immigration system will still remain in the hands of a bureaucracy which is steadily becoming more and more hostile to immigrants in general, and to highly skilled, well educated immigrants in particular.

For two decades, the position of Market Research Analyst has been a classic example of a specialty occupation qualifying for H-1B approval. Since almost every type of business, large and small, depends on market research in order to survive and grow, this is a key H-1B position, not only for well-educated professional immigrants, but for their employers.

Any USCIS action seeking to undermine this position's long-standing acceptance as a specialty occupation qualifying for H-1B is, in effect, a shot across the bow of the entire H-1B system.

Up until quite recently, neither the USCIS nor its predecessor IRS had seriously questioned the proposition that in order for someone to be qualified to work in this position, it was necessary to have a least a four-year bachelor degree or the equivalent in marketing or a related specialty.

According to the USCIS regulations, only a position which normally requires a bachelor degree or equivalent in a given specialty qualifies for H-1B.

There was always some flexibility as to what kind of specialty fields of study were considered to be related to Market Research, but there was no doubt that specialties such as marketing, economics, communications or other similar ones were considered acceptable qualifications for this position.

Most H-1B petitions for this occupation were almost invariably approved. This has been true for my practice and I am sure for many other H-1B attorneys as well.

USCIS puts great reliance on a US Department of Labor publication called the Occupational Outlook Handbook ("OOH") in deciding whether a particular position meets the above H-1B requirements, since the OOH lists the normal educational requirements for hundreds of different jobs.

However, the OOH is not written specifically as a guide for H-1B purposes. It is intended mainly for students and other people deciding what kind of career to choose. Therefore, its pronouncements about which levels of education, and in what areas of study, are required for various jobs often come across with all the clarity of the Oracle of Delphi, or the ancient Roman Sybil at Cumae.

However, the latest version of the OOH (2012-2013) has a very clear list of areas of study that are related to this occupation The current OOH edition states:

"Market research analysts typically need a bachelor degree in market research or a related field."

This exactly fits the classic definition of a specialty occupation according to the H-1B regulations. See 8 C.F.R. Section 214.2(h)(4)(iii)(A). There is nothing Delphic or Sybilline about this.

The OOH then goes on to mentions what the related fields are:

"Many [market research analysts] have degrees in fields such as statistics, math or computer science. Others have a background in business administration, one of the social sciences or communications. Courses in statistics, research methods, and marketing are essential for these workers; courses in communications and social sciences-such as economics, psychology and sociology- are also important."

It would be difficult to imagine a more straightforward, carefully researched and thought out list of specialized areas of study which are related to the above position.

Nevertheless, I have recently received RFE's in two different cases, each one of which argues that the OOH does not consider the position of Market Research Analyst as a specialty occupation. One RFE claims that this position does not meet the above definition of a specialty because a "wide variety" of degrees and educational backgrounds could allegedly qualify someone for this position.

This distortion of the plain language of the OOH runs directly counter to its obvious meaning that the above position requires a bachelor degree in one or more specific and directly related specialty fields. It is as if adding up half a dozen or specialties amounts to a total of zero specialties.

The second RFE simply tries to pretend that the OOH passage quoted above doesn't exist. This RFE states that, according to the OOH, the position of Market Researcher does not require a bachelor degree in a specific specialty.

This is despite the fact that the OOH, as shown above, lists several specific specialty areas of study as qualifying a person for this position.

In a case decided last year, a Federal District Court strongly criticized the USCIS for ignoring the plain meaning of the H-1B regulations in an H-1B Market Research Analyst case involving a similarly tortured USCIS interpretation of the OOH. Residential Finance Corporation vs. USCIS (USDC, Southern District of Ohio, Eastern Division, Decided March 15, 2012)

More about this case will be discussed in an upcoming post. Meanwhile, the USCIS message to well - educated, highly qualified foreign professionals who are playing by the rules and meet all the H-1B requirements for working in this long-recognized specialty occupation appears to be quite clear: Go Home.