Reopening of H-1B Petitions for Market Research Analysts Positions

Market research professionals whose H-1B petitions were denied between January 1, 2019 and October 19, 2021 may be able to reopen their cases now, under a settlement agreement in the federal case of MadKudu Inc., et al. v. U.S. Citizenship and Immigration Services, et al., No. 20-cv-2653 (N.D. Cal.)

Pursuant to this agreement, USCIS has agreed to allow class members in the federal case to file motions to reopen their denied H-1B petitions. 

Who may file a motion to reopen?

Class members who are eligible to submit a motion to reopen their denied H-1B petitions must meet the following criteria: 

• They must have filed an H-1B petition between Jan. 1, 2019 and Oct. 19, 2021, for a market research analyst.
• USCIS denied the petition based on a finding that the Occupational Outlook Handbook (OOH) entry for a market research analyst did not establish that a degree is normally the minimum requirement for entering the occupation.
• The H-1B petition would have been approved but for this finding. 
• There is still time left in the period specified in the certified Labor Condition Application (LCA) originally submitted with the underlying Form I-129.

How to file a motion to reopen the denial?

Eligible parties may file a motion to reopen a denied H-1B petition by filing the Form I-290B with USCIS with proper supporting documents on or before April 26, 2022.   There is no filing fee required for this motion. 

The filing addresses are as follows: 

USCIS Nebraska Service CenterUSPS

Attn: Madkudu Project
P.O. Box 87129
Lincoln, NE 68701

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USCIS Nebraska Service Center
Attn: Madkudu Project
850 ‘S’ Street
Lincoln, NE 68508

A motion has specific requirements and can be approved only if the legal standard is met.  Substantial documentary proof is required too support the motion to reopen.  Applicants must provide evidence to prove that they are class members, that their H-1B petitions for market research analysts positions were denied solely because of a finding that these positions are not specialty occupations, that the job offer is still valid, and they are otherwise eligible for reopening.  

Conclusion

USCIS stated that it will make a decision on all eligible, time-filed reopening requests within 90 days of receipt.  Further, USCIS will try to prioritze cases with LCAs expiring less than 90 days after the Form I-290B is filed with USCIS.  

This is an excellent opportunity for applicants to reopen their denied H-1B petitions.  It is not a trivial request.  Interested parties should work with their immigration attorneys to file a legally sufficient motion in order to increase the chances for approval. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)

Market Research Analyst Requires no Specific Major

The U.S. Citizenship and Immigration Services (USCIS) recently ruled that, in the context of employment-based immigration, the profession of market research analyst does not require the candidate to have a specific field of study, as long as the person possesses the requisite degree and completed quantitative courses. This decision is important in that it provides clarification to the employers and applicants who are seeking classification of market research analysts in the labor certification applications.

Background: The decision, dated October 30, 2009, was issued by the Administrative Appeals Office (AAO) of the USCIS from an appeal of a denial of a second preference employment visa (Eb-2) petition by the Nebraska Service Center (NSC). The employer in the petition is hiring a market research analyst to work for its import/export business. The labor application specifies that the position requires a master degree but does not specify any particular major. In fact, “any major” is acceptable, according to the labor application. Additionally, the job requires proficiency in the Japanese language. The NSC Director denied the petition based on the lack of a major field of studies in the job offered. The NSC relied on some case law which held that not only an advance degree is required for a Eb-2 petition, applicant’s studies must also be related to the profession. The logic was that an engineer should have studied engineering before working as one; and a computer programmer should have majored in computer science or another IT field.

On Appeal: The AAO initially noted that the labor department is not charged with the responsibility to determine whether the foreign worker is qualified for the job classification specified in the labor application. The role of the Labor Department is the determine if there is an able, ready and available U.S. worker to do the job and if the job offer will adversely affect the working conditions of American workers. It is the USCIS that must decide 1) the suitability of the job requirements for the job classification and 2) whether the foreigner meets the requirements of the job offered. Therefore, the AAO must decide these issues anew based on the law and evidence.

The AAO narrowed down the issue of discussion to Eb-2 professionals with advance degrees based on the requirements of the employer in the labor application. According to the regulations, for Eb-2 the job offer in the labor application “must demonstrate that the job requires a professional holding an advanced degree or the equivalent.”

“Profession” in the regulations is defined as a profession that requires the attainment of bachelor’s degree or its foreign equivalent as for entry into the profession. AAO points out that to enter some professions, it may require more than a bachelor’s degree. The Immigration Act actually listed some occupations as “professions” such as attorney, doctor, engineer, etc. The occupation of market research analyst is not one of the listed professions in the Act. 

The AAO held that market research analyst is a profession for Eb-2 purposes by studying the job descriptions and requirements in the labor department occupational reports and databases. These reports show that the profession usually requires the attainment of a bachelor’s degree; some jobs actually require a master’s degree. Based on these reports, the AAO ruled that the profession of market research analyst does not require a specific major field of studies. 

However, these labor reports and databases state that the profession does require the candidate to have taken courses in quantitative analysis such as mathematics and statistics. The applicant in the case did coursework in mathematics and economics and is therefore qualified for the job. The fact that her master degree was in public administration is not an issue. (It is interesting to note that the job’s language requirements have not been challenged by either the Labor Department or the USCIS. Usually language requirements in labor application are sensitive issues and the employer must justify them by presenting evidence to show “business necessity.” Here, it appears that the issue was not raised.)

Conclusion: The decision provides very helpful guidance to professionals who work as market researchers and analysts. This profession has become very popular even during this economic downturn. Companies especially manufacturers and service providers would like to know exactly where, how, and to whom they should market their products and services. The role of Market research professionals is to answer these critical business questions. It is not exaggerating to say that they play a very important role in boosting the bottom line of American businesses.