U.S. Employer Challenges USCIS “Not a Specialty Occupation” H-1B Petition Denial That Overlooked Web Developer’s Specialized and Complex Duties

Demand for educated workers often exceeds 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.

As U.S. Citizenship and Immigration Services (USCIS) continues to scrutinize and reject meritorious H-1B petitions, one emerging pattern is its rejection of petitions for entry level positions. USCIS argues that an entry level position as defined by the Department of Labor cannot be a specialty occupation, ignoring the fact that the H-1B statute defines a specialty occupation by reference to the education required to enter the occupation – namely, a bachelor's degree.

The plaintiff H-1B employer is a web development, design, and marketing firm dedicated to serving the financial services industry. Through the petition, it sought H-1B status for a highly-educated and skilled foreign national to work as a Software Web Developer, a position within a field where the education requirement for entry ranges from high school diploma to bachelor's degree. USCIS disregarded substantial evidence that the employer requires a bachelor's degree or higher because of the position's complex and specialized duties.

The Council is co-counsel with M. Mercedes Badia-Tavas under the Council's program to encourage business immigration attorneys to file suit to challenge unlawful agency denials of employment-based petitions.