Crisis in H-1B Adjudications: USCIS Using Incorrect Standards

USICS ignores “preponderance of evidence” standard by erroneously applying  restrictive definition of “specialty occupation”

Yesterday, the American Immigration Lawyers Association (AILA) submitted its memo to USCIS Director Mayorkas outlining, with exasperation, the agency’s restrictive interpretations of the terms “specialty occupation” and “body of highly specialized knowledge” in H-1B adjudications and making the case for USCIS to repudiate its current approach. These incorrect interpretations have evolved through non-binding appeals decision which have, in turn, been erroneously applied by USCIS, which also continues to ignore the preponderance of evidence standard.

Since 2009, AILA has found that USCIS will only find that a position is a “specialty occupation” and therefore eligible for the H-1B visa in those rare occupations where a single specific degree in a discrete academic major is considered suitable for entry into the occupation. This interpretation is inconsistent with the statute and regulations. So now we have the absurd situation where the appeals office of USCIS writes regarding a Programmer Analyst that because the job under discussion could be performed by individuals with various types of degrees including Business, Math, Science, Technology, and Computer Science, the Programmer Analyst position does not require a degree in a SPECIFIC SPECIALTY and is therefore not a specialty occupation, and is therefore not an H-1B position.

This nonsensical requirement that the degree must be in a specific academic major or have a specific title has recently been rejected by one U.S. District Court in an H-1B case involving a Market Research Analyst. AILA has called on USCIS to repudiate this incorrect line of cases and reasoning where a specific specialty is equated with a single, specific, academic major or field and to restore the prior interpretation where “highly specialized knowledge” can be gained in related academic disciplines without regard to the name of the major or field, and that a qualifying degree can be from one of several related bodies of knowledge appropriate to the job opening in question, without regard to the label of the degree. We will wait to hear how USCIS responds to this important and timely challenge from the Immigration Bar.

Article categories: Immigration Policy and Legislative Initiatives, Work Permits

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