Earlier this week, a federal court in Washington, DC, upheld U.S. Citizenship and Immigration Services’ (“USCIS”) denial of an H-1B petition for a Quality Assurance Analyst (“QA Analyst”), finding that the agency’s analysis of the regulations defining a “specialty occupation” was not contrary to law.  This decision provides important insights into 1) how the degree requirement should be worded so that a position qualifies as a “specialty occupation”; 2) how to strengthen expert statements and job postings of similar positions; 3) the need for descriptions of job duties that communicate complexity while being comprehensible; and that 4) federal court litigation may not be the solution for overcoming H-1B denials because the standard of review for overturning these decisions is tough.  Speaking from my own experience as a staff attorney at the Ninth Circuit for five years, the federal courts generally will defer to an agency’s decision unless the agency clearly failed to consider relevant evidence in the record or disregarded applicable case-law.  

Degree in a Narrow Range of Fields Required for H-1B Classification.

In this case, USCIS denied HSK Technologies’s change of employer H-1B petition principally because it did not appear to require a degree in any specific field for the QA Analyst position.  In the H-1B petition, HSK Technologies had stated the following was required for the QA Analyst position: 

“a minimum of a bachelor’s degree in Computer Science, Information Technology, Mathematics, Engineering or its equivalent, as well as any other interested and qualified professionals with diverse backgrounds in the sciences, technology, engineering, or mathematics, who has the necessary quantitative and qualitative critical thinking skill sets.”  

USCIS reasoned that a position for which such a wide variety of fields of study was acceptable generally did not qualify as a “specialty occupation” because the regulations required a degree in a “specific specialty,” unless the employer could show how each field was directly related to the duties and responsibilities of the particular position.   The court noted that HSK Technologies did not show the requisite connections, and therefore the agency’s decision was not contrary to law. 

Before the court, HSK Technologies argued that USCIS was acting unlawfully by imposing a “single-degree requirement.”  The court was not persuaded by this argument. 

Evidence that Failed to Prove Specialty Occupation.

The court upheld the agency’s dismissal of the expert statements and the job postings of other comparable companies, which were submitted to show a bachelor’s degree requirement was common to the industry.  The court found that USCIS’s decision to disregard the expert statements because they did not contain citations or corroborating evidence was not unreasonable.  The court also agreed with the agency that the job postings showed employers’ hiring practices for a QA Analyst position vary: some specified a field of study whereas others did not.  Although the job postings showed a degree was an industry standard, they did not show that a degree in a specific field was required.  

With regard to HSK Technologies own hiring practice of requiring, at minimum, a bachelor’s degree in a specific field of study, the court affirmed the agency’s conclusion that the employer failed to provide any documentation to support its claim that it imposes a specific degree requirement for its own hires.  Typically, such evidence would include degrees and transcripts of each employee holding the same position, offer letters and proof of employment of these employees, as well as the employer’s own job postings for the position.  

Finally, the court was not convinced by the employer’s description of the job duties that the position was so complex or unique that a degree was required.  Rather, the court found the job duties were either vague or jargon-heavy.  The court admonished the employer for failing to communicate the complexity of the position’s job duties in an accessible manner.  It also rejected the employer’s argument that the agency should defer to the employer’s determination of whether the job duties are sufficiently complex as to constitute a “specialty occupation” where the employer did not provide any legal authority for such deference.  

 In reviewing the court’s analysis of the agency’s denial, here are four key take-aways:

  1. Fields of study required for the specialty occupation position should be narrowly tailored.  The fields of study also should be clearly related to the position.  

2. USCIS is giving less weight to expert statements.  In disregarding the expert report and letters from executive leaders at comparable companies, the agency states that it is not required to accept or may give less weight to such evidence.  

  3. Job postings for parallel positions in comparable organizations should show that a degree in a specific specialty is common across the industry.  Job postings for similar positions that do not specify fields of study should not be submitted.  

4. Complexity of the job duties should be explained in an accessible way.  Job duties need to be drafted in a way where their technical nature is simplified without becoming too vague.  This is hard to do, but the court’s frustration with technical jargon clearly suggests that explaining the technical jargon will help communicate the complexity of the job duties.  

Federal Court Litigation: A Discouraging Standard of Review

With the increase in H-1B denials, immigration lawyers have been considering litigation in federal court as a strategy for putting pressure on USCIS.  But, frankly, agency decisions are hard to reverse in federal court. In reviewing the agency decisions, the courts are looking for denials that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Where the agency considers all the evidence in the record, provides a “rational” explanation for its decision, and is not acting contrary to established case-law, the federal courts will defer to the agency decision. Alas, as someone who worked for the federal courts for five years, I can confirm that judges generally are reluctant to reverse agency decisions unless there has been a clear abuse of discretion or the agency is disregarding precedent. 

Conclusion

Although this decision seems harsh, it provides useful guidance on how to tighten and strengthen petitions.  More detailed and document-intensive H-1B petitions that clearly show the H-1B position is a specialty occupation is the best way forward.