Wolfsdorf Rosenthal LLP

Federal Judge Chides USCIS for Denial of ‘Specialty Occupation’ H-1B Petition to Market Research Analyst With Related Bachelor’s Degree


In Residential Finance Corporation v. USCIS, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio chided U.S. Citizenship and Immigration Services (USCIS) for its faulty analysis of why it denied an H-1B petition to a market research analyst with a bachelor’s degree in that field.

The issue before the court was whether USCIS incorrectly concluded that a “specialty occupation” was not involved. The court noted that a specialty occupation is one that requires 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. A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor’s Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance. The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

“Perhaps most bewildering is that Defendant [USCIS] rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record,” the judge said.

Judge Frost continued:

Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decisionmaking. Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.

The judge pointed out that USCIS expressly admitted “inexplicable errors” in its briefing, such as references to the wrong sections of the OOH, and that the agency’s decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested. Instead, he said, they constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.” If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, “it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning.”

According to the court, the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position. Judge Frost said that USCIS had “ignore[d] the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

Judge Frost concluded that USCIS failed to meet the “fundamental threshold for rational decisionmaking and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors.” He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered USCIS to grant the petition and change the beneficiary’s status to H-1B nonimmigrant.

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