A recent case settled in a federal district court has ruled against the USCIS and its strict and seemingly arbitrary classification of a market research analyst as failing to be a “specialty occupation.” This is good news not only for employers looking to hire market research analysts but any position that fell victim to the USCIS’s growing strictness over the past several years.
The H-1B visa is one that is granted to specialty occupations that, by their very definition, require at least a bachelor’s degree. In order to judge whether an occupation qualifies, the USCIS will consider two sources. The first of these and the most frequently referenced is the Occupation Outlook Handbook (OOH), and the second is O*Net.
In the OOH, there are multiple ways in which jobs are described. The most common is to say that a position “typically requires a bachelor’s degree,” “a bachelor’s degree may be required,” or “typically requires a bachelor’s degree.” Generally, these descriptions have sufficed for a position to be considered eligible for H-1B visas because it served to reflect the fact that an employer would seek candidates with bachelor’s degrees to fill these positions.
However, during the previous administration, the USCIS began to move to a far stricter interpretation of these statements. The agency began to consider that terms such as typically and normally meant that this would not always be the case and, as a result, would not necessarily qualify as an H-1B eligible specialty occupation. As a result, the USCIS began to reject petitions for positions that it once had accepted.
One position that received special attention from the USCIS was that of a market research analyst. The USCIS appeared to be arbitrarily denying petitions for this position based on its interpretation of the description provided in the OOH. Noticing this, several organizations and law firms brought a class-action lawsuit against the USCIS, and this resulted in a settlement agreement.
This settlement agreement stipulates that the agency was mistaken in its position and that those employers that had petitioned for the market research analyst position during the time frame of January of 2019 and October of 2021 may request re-adjudication of the case.
This could lead to a general reduction in the number of seemingly arbitrary denials of cases based on not meeting the standards of a specialty occupation. This new precedent may offer many new options for qualifying positions and make it much easier for employers to use the H-1B visa to fill out their workforce.