As previously reported, certain job positions present a particular challenge when requesting H-1B specialty occupation status from U.S. Citizenship and Immigration Services (USCIS). One such position is the “market research analyst.” This is partially because the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) states that typically employers require a bachelor’s degree for such positions but that the degree can be in one of various fields, such as statistics, math, computer science, business administration, social sciences, communications, and others.
On January 14, 2015, the United States District Court for the Western District of Washington at Seattle issued an opinion granting the Plaintiff’s Motion for Summary Judgment and denying the Defendants’ Cross-Motion for Summary Judgment, ordering the Defendant, USCIS and the Department of Homeland Security (DHS), to grant the Plaintiff’s H-1B petition. The District Court found that “market research analyst” met the “specialty occupation” requirement, stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.”
The Court agreed with the government that if the job opportunity only requires a generalized degree in any field as opposed to a specialized degree, the H-1B requirements will not be met. However, the Court criticized the government’s statement regarding the OOH description that “although a baccalaureate level of training is typical, the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum requirement for entry into the occupation.” The Court found that such an interpretation impermissibly narrows the plain language of the statute, because the first regulatory criterion does not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program. Indeed, the regulatory text allows for either a specialized degree or an equivalent as the threshold for entry into the occupation at hand.
According to the Court, the market research analyst position is a distinct occupation with a specialized course of study that includes multiple specialized fields. The Court found that the position in question requires a degree in market research, or where no such degree is available, an equivalent technical degree accompanied by relevant coursework in statistics, research methods and marketing. Therefore, even though the OOH lists a number of fields that would be acceptable, such fields would include some coursework in the above specialized subjects. The fact that the job position requires college-level coursework in specialized subjects satisfies the regulatory requirements. The Court’s decision is beneficial because it stands for a broader and more flexible interpretation of the regulation than traditionally utilized by USCIS. It is unclear if USCIS will consider this decision when adjudicating H-1B petitions outside of the Western District of Washington.
With the H-1B season upon us, employers must act quickly both to decide if they wish to sponsor any employees for H-1B and, if so, to determine if such employees would actually qualify under the rigorous specialty occupation standard. The above overview is not a comprehensive analysis. A case-specific strategy is needed for each case based on unique facts and circumstances. Substantial case law and government policy have developed the specialty occupation standard over the years. Therefore, it is important to consult with an experienced immigration lawyer to determine if a particular job opportunity is an H-1B caliber position.