District Court’s Ruling on definition of H-1B “specialty occupation”

One of the key components of an H-1B filing is whether or not the job description stated by the H-1B petitioning employer qualifies as a “specialty occupation.”  The Immigration and Nationality Act (INA) defines a “specialty occupation” as: an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and 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.” 

In a recent ruling by a U.S. federal district court, CareMax Inc. v. Eric Holder, the court held that the petitioning employer did not prove that the job description of their entry-level public relations position meets the criteria of a “specialty occupation.”  Specifically, CareMax’s petition for H-1B, describing their specialty occupation as an entry-level public relations specialist was denied by the USCIS, because the USCIS determined the specific field did not require a bachelor’s degree. After their petition was denied, CareMax filed a lawsuit to challenge the decision.

In general, the law states that where a position is not presumed to be a “specialty occupation,” the Regulations provide criteria to determine whether the job is a “specialty occupation.”  A position may be a “specialty occupation” if it satisfies one of the following four established criteria: (1) a bachelor’s degree or higher is the minimum requirement for entry into the profession; (2) a bachelor’s degree is the common requirement for an occupation in the relevant industry, or the position is so complex that it can be performed only by an individual with a degree; (3) the employer has typically required a degree or its equivalent for the position in the past, and (4) the position’s responsibilities are so specialized that the employee must hold a bachelor’s degree or higher.  H-1B employers must prove at least one of these requirements to meet the educational criteria.

The judge in CareMax ruling used following criteria to determine whether the position is a  “specialty occupation” or not:

• USCIS referred to the Department of Labor’s Occupational Outlook Handbook (“OOH”) profile of the public relations specialist position to determine if a specific bachelor’s degree is a minimum requirement for entry into the profession. The OOH profile states that public relations specialists “typically need a bachelor’s degree.”  Employers usually want candidates who have studied public relations, journalism, communications, English, or business.” While a bachelor’s degree appears to be a minimum requirement for entry into the profession, the OOH makes clear that employers are not particularly concerned with what type of bachelor’s an applicant has achieved. As USCIS noted, the OOH does not support a claim that “public relations specialist” is a specialty occupation.

• CareMax did not meet their burden of proving that parallel positions in similar industries require a bachelor’s degree in English.

• CareMax submitted conflicting evidence as to whether it had previously employed a public relations specialist, which made it even more difficult to prove that the company requires a bachelor’s degree in English.

Based on these factors, the court decided CareMax’s public relations specialist position is not a highly specialized or complex such that a specific bachelor’s degree (or higher) is required.

Sharma Law Offices, a highly rated Atlanta H-1B immigration law firm, always strive to educate our clients with the most up-to-date information. Attorney Sharma, licensed in Tennessee, with office in Atlanta, GA practices Federal U.S. Immigration Laws and represents clients located throughout the United States. If you are unsure about whether your H-1B position should qualify as a “specialty occupation,” please contact us for legal advice concerning this matter.