District Court Finds No H-1B Status for Public Relations Specialist

April 22nd, 2014

The District Court for the Northern District of California upheld USCIS’s decision finding a a public relations specialist is not a specialty occupation for H-1B purposes.  It rejected the argument that a general bachelor’s degree provides the specialized knowledge required for H-1B status.  CareMax v. Holder, 13_cv_02412-CRB, 4/16/2014.

The INA (Immigration and Nationality Act) provides temporary nonimmigrant working H-1B visas for specialty occupations.  8 USC Section 1101(a)(15)(H)(i)(b).  A specialty occupation requires “(A) theoretical and practical application of a body of highly specialized knowledge, and (B) 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.”  8 USC Section 1184(i)(l).  Certain fields are considered specialty occupations, including medicine, engineering, law and mathematics.  8 CFR Section 214.2(h)(ii).

Also, an employer can demonstrate that a position is an H-1B specialty occupation by showing that it meets one of four criteria:  (1) a bachelor’s degree or higher or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.  8 CFR Section 214.2(h)(4)(iii)(A).

Further, the beneficiary must be qualified to work in the H-1B position.  The regulations require that the non-citizen employee meet one of the four criteria:  (1) hold a US bachelor’s degree (or higher) required by the occupation; (2) hold an equivalent foreign degree; (3) hold an equivalent state license authorizing the practice of the specialty occupation; or (4) hold a combination of education, training and experience to practice the specialty occupation.  8 CFR Section 214.2(h)(4)(iii)(C).

The District Court found that the position of public relations specialist at CareMax did not satisfy any of the four criteria under 8 CFR Section 214.2(h)(4)(iii)(A).  It referred to the Occupational Outlook Handbook (OOH), which states that a public relations specialist typically needs a bachelor’s degree and that employers usually want candidates who have studied public relations, journalism, communications, English or business.  The District Court concluded that the OOH makes clear that employers are not concerned about the field of study of the underlying bachelor’s degree.  Also, because it was an entry level job according to the Department of Labor guidelines the District Court found that the job was not highly specialized, complex or unique.  In addition, the ads for other public relations specialist positions did not require a bachelor’s degree in a specific field or were for positions in dissimilar organizations.

Finally, regarding the beneficiary’s qualifications, the District Court found that his education was not the equivalent of a US bachelor’s degree in English.  The employer had obtained an education equivalency evaluation from a European-American University and the District Court found that because it was not accredited in the US that it had little weight.  It noted that credential evaluations are not binding on USCIS.

As this case shows, it is imperative in preparing an H-1B petition that involves a position that is not recognized by USCIS as a specialty occupation (such as the ones listed above)  to emphasize the highly complex nature of the job duties, the industry standard, and/or the company’s track record in proving that the position is a specialty occupation.

Retaining Priority Date of I-140 Immigrant Visa Petition for Green Card Case

April 10th, 2014

The beneficiary of an approved Form I-140 immigrant visa petition in the EB-1, EB-2 or EB-3 employment-based category may retain the priority date of this petition for all subsequent I-140 petitions filed on his her behalf in the EB-1, EB-2 or EB-3 category.  This could significantly reduce the processing time to obtain legal permanent residency (the green card).  This applies even where the I-140 petition has been revoked after its approval.  The exception, where the revocation results in a loss of the priority date for this petition, is where there was fraud or misrepresentation.

The priority date is the beneficiary alien’s place in line for an immigrant visa number to apply for legal permanent residency.  It is either the date that the PERM labor certification application (Form ETA 9089) is filed with the Department of Labor, or if the PERM process is bypassed for those outstanding ability aliens, the date the Form I-140 immigrant visa petition is filed.  There are 140,000 employment-based visa numbers allocated each year equally to each country worldwide.  For those countries whose number of foreign nationals applying for a visa number exceeds the visas allotted to that country, such as India and China, a backlog results and these applicants are assigned a place in the line (the priority date).

Especially for those from India or China, or those in the EB-3 worldwide category, in which case immigrant visa numbers are not current and there is a long wait for them, retention of a priority date is a boon.  For example, let’s take an Indian software engineer with an I-140 approved on her behalf in the EB-3 category and with a priority date of September 1, 2009.  If she changes H-1B employers, leaving the employer that obtained the I-140 for her, she can retain the priority date from that petition and use it in her second PERM labor certification-based green card case at her subsequent employer.  If that second employer obtains a certified PERM application on her behalf in 2013, which has a priority date of 2013, then when filing its I-140 on her behalf it can instruct USCIS to accord its I-140 the priority date of the first 140 petition.  Even if the beneficiary’s first I-140 is revoked (except for fraud or misrepresentation), she can still retain the priority date.

H-1B Cap Reached for 2015 but Visas Available for Cap-Exempt Institutions

April 10th, 2014

USCIS has announced that the cap has been reached for H-1B visa numbers for fiscal year 2015 and it will conduct a computer lottery to assign visa numbers to H-1B petitions filed the first week of April 2014.  For those beneficiaries subject to the H-1B cap, they must wait until next year to try again for a number.

The good news is that certain institutions are exempt from the H-1B cap.  These include nonprofit entities affiliated with institutions of higher education.  USCIS takes a very narrow view of affiliation, requiring joint control or ownership. However, it will give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to an affiliated institution of higher education, absent any significant changes in circumstances.

Therefore, such nonprofit entities can file H-1B petitions throughout the year for beneficiaries who would otherwise be subject to the H-1B cap.  These beneficiaries include those who have not been counted against the cap within the past six year (for example, J-1 physicians, F-1 students or H-4s changing to H-1B status).  They may start working in H-1B status as soon as the petition is approved.  Now that there is premium processing, that could be in as little as 2 weeks from filing the petition.

My office has extensive experience successfully filing such H-1B cap exempt cases.