The American Immigration Lawyers Association and the American Immigration Council joined several law firms to file a class-action lawsuit against USCIS in order to challenge USCIS’s denial of H-1B petitions for Market Research Analysts. The lawsuit challenges pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions, asserts that USCIS misinterprets the Occupational Outlook Handbook’s description of the educational requirements for the position and that the Market Research Analyst position is a specialty occupation under the first of several tests which establish specialty occupations.
In order to be classified as a specialty occupation, the position must meet one of four criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
8 C.F.R. § 214.2(h)(4)(iii)(A)
In this case, the plaintiffs are focusing their argument on the first test: A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position. USCIS has stated that it relies on the Occupational Outlook Handbook as an authoritative source to determine whether a position meets the requirements for a specialty occupation position. The Occupational Outlook Handbook states that:
“Most market research analysts typically need a bachelor’s degree in market research or a related field. Many have degrees in fields such as statistics, math, or computer science. Others have backgrounds in business administration, the social sciences, or communications. Courses in statistics, research methods, and marketing are essential for these workers. Courses in communications and social sciences, such as economics or consumer behavior, are also important.”
USCIS has denied Market Research Analyst petitions arguing that if a particular employer would accept various degrees to qualify for the job, then the position is not specialized. These denials either ignore the plain language of the Occupation Outlook Handbook or treat the OOH’s statement that most market research analysts typically need a bachelor’s degree as a statement that a degree is not normally the minimum requirement.
Although an employer may accept multiple degrees for the position, the coursework that is essential demonstrates that highly specialized knowledge is necessary to perform the position. The degrees listed in the OOH are closely related to market research. As such the position should be considered a specialty occupation.
This type of litigation can be very helpful in assisting future H-1B petitioners as it holds USCIS accountable and forces the government to correctly apply the law when making decisions regarding employment-based petitions. H-1B workers are an important part of the US economy and Brown Immigration is here to support employers and employees navigate this complex process.