U.S. Employer Challenges USCIS “Not a Specialty Occupation” H-1B Petition Denial Disregarding Employer’s Evidence of Specific Specialty Degree Requirement

Demand for educated workers in the professions often outweighs the supply of qualified workers. To assist in filling this gap, Congress enacted the H-1B nonimmigrant visa classification for employers with jobs in a “specialty occupation.” A “specialty occupation” requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s or higher degree in the specific specialty (or its equivalent) to enter the occupation in the United States.

This case is representative of the difficulties employers encounter when new occupations emerge to fill business needs which require at least a bachelor’s degree, but no consensus exists as to the degree requirement. U.S. Citizenship and Immigration Services (USCIS) fixates on the lack of published standards and disregards substantial evidence that an employer requires a bachelor’s or higher degree in a “specific specialty” because of the complexity and specialized nature of the job duties.

The plaintiff H-1B employer provides amenity services to seniors, their families and their senior communities, including the only online platform where families and friends can connect with seniors by purchasing salon and spa services, pro-aging products, and personalized gift certificates. Through the petition, it sought H-1B status for a highly-educated and skilled foreign national to work as Director of Business Development, a position most closely aligned with the Business Intelligence Analysts occupation.

Before the answer was due, USCIS reopened the H-1B petition by issuing another Request for Evidence (RFE) and filing a motion to stay the case. About five weeks after plaintiff submitted its RFE response, USCIS approved the H-1B petition. Since plaintiff received the relief it wanted, it filed a notice dismissing the suit.

The Council served as co-counsel with Brian J. Halliday of Green and Spiegel Midwest LLC, under the Council’s program to encourage business immigration attorneys to file suit to challenge unlawful agency denials of employment-based petitions.