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 In Employment Based

A recent US District Court Case provided a victory for H-1B Visa Employers, Employees, and Practitioners.

The March 6, 2020 decision in 3Q Digital v USCIS Judge Lamberth ordered USCIS to reopen the case and approve the H-1B petition.

There are a few points of interest:

  • The H-1B Visa Petition Job Title was Search Engine Marketing Account Manager.
  • The LCA SOC Code was 15-1199.10, Computer Occupations All Other, Search Marketing Strategists (Job Zone 4).
  • OOH does not cover this occupation and instead refers to O*Net
  • O*Net: Education: Most of these occupations require a four-year bachelor’s degree, but some do not.
  • The Beneficiary Received a Bachelor of Arts Degree in Economics (UMass, 2017), (interesting to note he had less than 3 years of work experience in SEO)

On 11/27/2018 USCIS denied the H-1B Petition on the grounds that the position of Search Engine Marketing Account Manager did not qualify as a specialty occupation since a Bachelor Degree in a Field related to the occupation must always be required. (O*net states that most of these occupations require a four-year bachelor’s degree, but some do not.)

The court ruled that the USCIS abused its discretion in determining that a baccalaureate or higher degree or its equivalent is not normally the minimum requirement for entry into the search engine marketing account manager position:

  • USCIS misapplied the law by substituting the word Always for the word Normally or Mostly.

Most of the recent court rulings regarding Specialty Occupation target USCIS for misusing subclause 1 of 8 C.F.R. § 214.2(h)(4)(iii)(A).

  • Subclause 1 on its own is sufficient to warrant approval of an H-1B visa
  • subclause 1 is met when the position must normally require a degree in a specific field.
  • subclause 1 does not require a degree in one specific major.
  • Cites Relx, Inc. v. Baran, more than one degree / major could qualify someone for the same position.

On USCIS relying upon the Occupational Outlook Handbook (“OOH”) instead of the O*NET:

  • The Court finds that using the OOH over the O*NET report is arbitrary and capricious.
  • References AILA’s FIOA request.
  • The ruling cites that documents from AILA’s FIOA request show that USCIS is improperly relying on the OOH to make legal conclusions about whether a position qualifies as a specialty occupation. The Bureau of Labor Statistics instructed USCIS numerous times that this is not an appropriate use of the OOH.

The ruling states that USCIS cannot deny a petition simply because there is no database that provides a dispositive list of the precise college majors that qualify someone for a job.

  • Specialty occupations are not limited to the hard sciences, and this Court will not tolerate any attempts within the agency to artificially create such limits in direct contravention of the governing statute and regulation.
  • In this case, the agency’s decision regarding subclause 1 constitutes an abuse of discretion, meaning that the Court must set aside that decision.

On positions where the multiple majors could qualify the position as a specialty occupation:

  • O*NET further explains that this position requires-among other skills-complex problem solving, critical thinking, judgment and decision making, systems analysis, systems evaluation, coordination, and monitoring.
  • Such descriptions go far beyond merely stating that a four-year degree is generally required.
  • Although the O*NET does not list specific majors, it does inherently provide some limitations on what degrees qualify a person for this type of job.
  • The appropriate majors for the job can be easily inferred from the list of skills laid out in O*net.
  • The Court finds that this is sufficient to prove the existence of a specialty occupation and that USCIS’s rationale for disregarding the O*NET report was arbitrary and capricious.

Other Acceptable Job Titles for 15-1199.10, Computer Occupations All Other, Search Marketing Strategists:

  • Channel Supervisor
  • Director of Audience Generation, Search, & Analytics
  • Director of Online Marketing Strategy & Performance
  • Director of Search Engine Optimization (Director of SEO)
  • Director, Search Marketing Strategies
  • Ecommerce Marketing Manager
  • Internet Marketing Consultant
  • Internet Marketing Specialist
  • Senior Search Engine Optimization Associate (Senior SEO Associate)
  • Senior Search Engine Optimization Specialist (Senior SEO Specialist)

 

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