The Devil is in the Details: Meeting the Criteria for an H-1B Visa Continues to Become More Difficult

By Maureen E. James - Skoler, Abbott & Presser, P.C.

January 22, 2020

It’s not getting any easier to persuade the government that your worker is eligible for an H-1B visa. As one example, in November, a Massachusetts federal court supported the U.S. Citizenship and Immigration Service (USCIS) decision to deny an H-1B Visa to an employee of a small start-up company on the ground that the position at issue, Operations Research Analyst, was not a “specialty occupation” eligible for H-1B visa status. In the case of an H-1B application, the burden is on the employer to provide sufficient evidence that the position meets the criteria of a “specialty occupation.”

In that situation, the employer petitioned for a visa on an employee who maintained both a Master of Business Administration and a Bachelor of Commerce. Regardless of those degrees, the USCIS found that an Operations Research Analyst position did not have a specific set of degree requirements and therefore did not meet the statutory criteria of a “bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” It noted that backgrounds in technical and quantitative fields may suffice.

In making its determination to reject the petition, the USCIS reviewed the job description not in light of the information provided by the employer, but by referring to the Occupational Outlook Handbook (OOH), offered by the Department of Labor’s Bureau of Labor Statistics. The OOH’s description of an Operations Research Analyst may have been vaguer than the business’s, but the Court found that it served as the benchmark by which the USCIS could measure the H-1B visa application. USCIS denied the visa, and the decision was appealed to the federal court. The Court upheld USCIS’s denial of the visa, finding that the employer could not meet its burden of proving that the position was a “specialty occupation” requiring a specialized degree.

Meeting the criteria for an H-1B visa isn’t going to get easier in the “specialty occupation” category. The Department of Homeland Security (DHS) has proposed to revise the definition of “specialty occupation” to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program. It also seeks to revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Since President Trump issued an executive order in April 2017 (“Buy American, Hire American”) that was intended to protect US workers from an influx of foreign nationals competing for US jobs, the scrutiny of H-1B applications has continued to grow exponentially.

In addition to the increased scrutiny of H-1B applications, USCIS has also announced a new electronic pre-registration process for the upcoming H-1B lottery, which requires employers to meet deadlines in March. For more information about the new process, check out my colleague Marylou Fabbo’s blog on the topic.