A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, March 13, 2015

Health Care Manager H-1B denial reversed

An acupuncture and traditional Chinese medicine practice in Lynnwood, WA, filed an H-1B petition on behalf of a Korean national for the position of a part-time Health Care Manager.  The petition was denied by USCIS because the agency found the profession not to be a "specialty occupation" under the H-1B Visa Program.  Further, the agency concluded that the beneficiary did not qualify for the position based on her three-year bachelor's degree and work experience.  On appeal, a District Court reversed the USCIS decision and approved the H-1B petition.

Congress created the H-1B Visa Program so that U.S. employers may hire foreign workers to fill job openings that generally require technical skills or professional knowledge.  For example, before the "dot-com" bubble was burst, most of the H-1B employees were hi-tech workers with computer or engineering skills.  However, the H-1B visa is not only granted to technical employees. Over the years, many other professionals such as Human Resource Specialists and Market Research Analysts, etc., have been found to qualify for H-1B status.  

For a job opening to qualify under the H-1B Visa Program, it must be a "specialty occupation" under the law. There are four different ways that a job can be classified as a specialty occupation.  One of the criteria is that " A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position."  In this case, USCIS, referring to the Labor Department's Occupation Outlook Handbook (OOH), concluded that Health Care Manager position is not a specialty occupation.  According to the OOH:

Medical and health services managers typically need at least a bachelor’s degree to enter the occupation. However, master’s degrees in health services, long-term care administration, public health, public administration, or business administration also are common. Prospective medical and health services managers have a bachelor’s degree in health administration.

In its denial, USCIS reasoned that while many Health Care Manager jobs require a bachelor's degree, it is not a requirement to enter the profession.  Further, it also noted that the profession does not require one specific degree to enter in denying the petition. 

On appeal, the District Court disagreed with this position.  Another Court in California actually has considered the issue and found that medical and health services managers constituted a specialty occupation. More important, the District Court held that the regulation "does not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program."   The statute and regulation actually allow for occupations that require the attainment of the “equivalent” of specialized bachelor’s degree to enter. 

Further the District Court also disagreed with the USCIS conclusion that the beneficiary did not qualify for the position. An expert opinion letter concluded that the beneficiary's three of years of coursework in South Korea and her four plus years of professional experience in management is the equivalent of a Bachelor of Science in Management from an accredited institution of higher education in the United States.  USCIS discounted the evidentiary value of the expert opinion letter but this position was also struck down by the District Court as being an abuse of its discretion.

The issues of specialty occupation and degree equivalency have become hot topics in recent years as the filings of H-1B petitions increase.  Careful planning and analysis is absolutely required before filing an H-1B petition to ensure legal compliance and approval. 

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