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.