In Employment Based

In TAYLOR MADE SOFTWARE, INC. vs KENNETH T. CUCCINELLI, Judge Rudolph Contreras of the US District Court of the District of Columbia found that USCIS improperly denied an H-1 B Petition for the position of Computer Systems Analyst based on USCIS using an incorrect interpretation of the Specialty Occupation definition.

For the purposes of the H-1B program, the INA defines a “specialty occupation” as one that requires “(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1).

In line with that statutory definition, the applicable regulations define a specialty occupation as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty” or its equivalent, plus “theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.”

8 C.F.R. § 214.2(h)(4)(ii) (“Definitions”).

The next subparagraph in the regulations provides more specific criteria (or prerequisites) as to what qualifies:

To qualify as a specialty occupation, the position must meet one of the following criteria:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; or

(2) 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; or

(3) The employer normally requires a degree or its equivalent for the position; or

(4) 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.

Case Background

Taylor Made is a small, Chicago-based software development company with ten employees.

On April 12, 2018, it filed a Form I-129 Petition for Mr. Kannan, whom it sought to employ as a computer systems analyst.

Mr. Kannan holds a Master of Science in Computer Science from the University of Illinois.

In a letter accompanying the petition, Taylor Made outlined the duties of the proposed role and explained why it qualified as a specialty occupation position.

On May 1, 2018, USCIS issued a request for evidence (“RFE”), seeking additional proof that the position qualified as a specialty occupation.

In response, Taylor Made mustered a variety of supporting evidence, including:

(a) a more detailed description of the position,

(b) relevant excerpts from various DOL documents (including the Occupational Outlook Handbook and O*Net Online database),

(c) an expert opinion from a Dr. Michael Lavine (a Professor at the University of Maryland),

(d) job advertisements for comparable positions in the industry, and

(e) a summary of the qualifications possessed by other computer systems analysts employed at Taylor Made.

USCIS denied the petition.

The USCIS decision explained each of the four § 214.2(h)(4)(iii)(A) criteria and why USCIS felt Taylor Made failed to prove that any of the criteria were met.

The Court overruled the USCIS denial and provided USCIS with a rebuke from misinterpreting the OOH.

The court concludes that USCIS must accept qualifying as a Specialty Occupation when OOH evidence indicates both that a specialty degree requirement is “common” and that “most” people in the position have a degree in a field related to the position, and cannot simply rely on the OOH’s recognition that an unspecified number of contrary cases exist as a basis to deny the H-1B petition.

The bottom line is that Judge Contreras brought USCIS back in line with a reasonable and previously accepted reading of the OOH and definition of a Specialty Occupation.

Here is the OOH page for Computer Systems Analyst.

Note the following entries:

  • A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.
  • Typical Entry-Level Education: Bachelor’s degree

Key takeaways:

When the OOH description is read in context, if it implies that a specialized bachelor’s degree is the typical baseline requirement, then it must be considered to be a Specialty Occupation.

In Xiaotong Liu v. Baran, No. 18-cv-376, 2018 WL 7348851 (C.D. Cal. Dec. 21, 2018), the court relied, in part, on “OOH language indicating that ‘most’ positions require a four-year bachelor’s degree” to conclude that “the record establishes that the position normally requires a bachelor’s degree or higher.”

In Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252 (S.D.N.Y. 2017), the OOH entry for “computer programmer” explained that “some employers hire workers with an associate’s degree,” but went on to say that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject.” Based on this language, the court concluded that “the Occupational Handbook arguably demonstrates that a bachelor’s degree or higher in a specific specialty is ‘normal[ly]’ the minimum requirement for entry into the position.”

In 3Q Digital, Inc., 2020 WL 1079068, at *3 (“[The regulation] does not say that a degree must always be required, yet the agency appears to have substituted the word ‘always’ for the word ‘normally.’ This is a misinterpretation and misapplication of the law, and [one that] effectively hold[s] the plaintiff to a higher standard than that which is set by the regulation . . .”).

 

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