USCIS Continues To Harm H-1B Workers and Their Employers By Restrictive Adjudication

USCIS is preventing many professional workers from obtaining H-1B visas designed for professional workers and preventing growth in U.S. companies that want to employ them because of restrictive interpretations of phrases in the Immigration and Nationality Act. The H-1B visa is commonly known as the professional workers’ visa, for people coming to work in “specialty occupations” which are occupations that normally would require a bachelor’s degree as the minimum entry level into that occupation. The immigration regulations list the types of evidence that an employer must present in order to demonstrate that a position is a “specialty occupation” and USCIS in the past followed them. However, in the last few years, without any change in regulation, oversight and notice to the public, USCIS added its own requirements to the regulations. This is really improper because it circumvents the rule-making process without authorization. In the last few years, the USCIS Administrative Appeals Office (AAO) has also reinterpreted the phrases “body of highly specialized knowledge” and “degree in the specific specialty” in such a way that limits the professional occupations to those that require only a single specific degree in a discrete academic major. This goes against past AAO decisions and against the reality where the individual’s suitable and sufficient knowledge to perform the duties of an occupation could be acquired through studies in a variety of academic areas, the position would still qualify for the “specialty occupation” definition because it required “highly specialized knowledge” related to the occupation. For example, many occupations require studies in more than one academic discipline while some academic degrees and university graduates do not come with an occupation-specific major. USCIS’ new interpretation gives the field of study of each individual control whether this individual would be deemed qualified and ignores the realities of the statutory language and real world realities. For example, a CFO could have an accounting or finance degree or a general business administration degree. A computer programmer may have a computer science degree or an engineering degree or math degree, all of give the individual unique tools to perform these highly complex duties of the occupation. The U.S. Department of Labor (DOL) has public resources and publications, including occupational information. However, USCIS dismisses the DOL classifications on one hand when an employer wants to prove a certain occupation requires a degree (such as marketing manager), and on the other hand uses the same classifications when they want to deny a case because of small variations in the language used by the DOL. For example, USCIS may accept DOL’s definition that “most employers require a bachelor degree to enter into this occupation” but may not accept language such as “many employers require a bachelor’s degree”, which is in essence the same thing. In order to fulfill the statutory requirements imposed on it, USCIS should go back immediately to implement the law and the regulations in the way they were intended, and not in this new way that has no support in the law or regulations. The American Immigration Lawyers Association wrote a very educated brief on this matter requesting USCIS to go to the proper adjudication of these petitions and I hope that USCIS will follow it.