District Court on H1B Specialty Occupation15 May 2014
A U.S. federal district court recently ruled on a case involving an issue that is a vital component of every H1B petition. The H1B classification is only appropriate for positions that qualify as “specialty occupations.” In the case at hand, CareMax Inc. v. Eric Holder, the court determined that the entry-level position for a public relations specialist described in CareMax’s petition did not qualify as a specialty occupation for H1B purposes. The arguments and analysis help to shed light on how the term “specialty occupation” is defined, an important concept in immigration law.
Note that the Murthy Law Firm was not involved in the CareMax case, but is simply sharing this information based on publicly available information to help educate employers and foreign national workers.
Factors in Determining “Specialty Occupation”
In order to obtain an H1B petition approval, the U.S. Citizenship and Immigration Services (USCIS) must find that the job described by the H1B petitioning employer qualifies as a specialty occupation. A specialty occupation requires (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. If the USCIS determines that a proposed job is not within a specialty occupation, the petition will be denied, regardless of the professional qualifications of the proposed H1B worker. A discussion of specialty occupations is included in the MurthyDotCom InfoArticle, ABCs of H1Bs: Getting Back to the Basics of the H1B Visa.
Background on CareMax Case
CareMax submitted a petition for an entry-level public relations specialist. The USCIS denied the petition, determining that the position was not a specialty occupation because it did not require a bachelor’s degree in a specific field. CareMax filed a lawsuit challenging that decision.
Degree Requirements Too Broad
The USCIS took the position that the job of a public relations specialist was not a specialty occupation, reasoning that, while a person usually must have at least a bachelor’s degree to fill a public relations position, most of these jobs do not require a degree in any particular area of study. The USCIS supported this argument by pointing to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which states that employers typically want candidates for public relations jobs who have studied public relations, journalism, communications, English, or business subjects. The Court agreed with the USCIS, finding that, because “…employers are not particularly concerned with what type of bachelor’s an applicant has achieved… ,” this position was not a specialty occupation.
Entry Level Position (and Wages) Undermined CareMax’s Argument
One argument put forward by CareMax was that the job duties for the proposed public relations specialist position were sufficiently complex that only a person with a degree in a specific area could fill the position. However, the court was not persuaded by this line of reasoning, in part because the labor condition application (LCA) submitted with the petition was for an entry-level position with a level 1 wage. As the court put it, “[a]n entry level position with entry level pay is hardly so complex or unique that it requires an applicant with a bachelor’s degree in a specific specialty.”
Note that there are positions that qualify as entry-level specialty occupations, for which entry-level wages are appropriate. But, depending upon the circumstances, H1B employers may face difficulties in arguing that a job is both an entry-level position and sufficiently complex to be deemed a specialty occupation.
H1B Petitions Must be Well-Documented
It is clear that neither the court nor the USCIS was impressed by the evidence provided by CareMax to support the petition. For instance, the court noted that CareMax submitted job postings from other companies advertising for public relations specialists in order to support the argument that a specific degree is a common requirement within the industry. Yet, the court found that these job postings actually strengthened the USCIS position that a degree in a wide range of fields is sufficient for these jobs. CareMax also provided two different letters to support the petition, but one letter contained information that apparently contradicted the other.
These findings bring to light another key element of all H1B petitions – the burden of proof is on the company to demonstrate that its petition should be approved. Evidence must be provided that supports the assertion that the position and beneficiary qualify, and this evidence must be carefully reviewed and considered prior to filing in order to provide the USCIS with a proper, approvable petition.
This court case demonstrates just a couple of the important legal issues that can arise in filing an H1B petition. Even though the concept of a “specialty occupation” may seem elementary to people who routinely file H1B cases, a failure to recognize this as a potential pitfall can lead to harsh consequences with the USCIS. Employers and foreign national workers with concerns about whether a position qualifies as a specialty occupations are encouraged to schedule a consultation with a lawyer at the Murthy Law Firm.
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