The Evolving Boundaries of H-1B Classification

Several courts have recently interpreted the requirements of the H-1B, a subject of immigration law that seldom gets attention from the judicial branch. One of these decision, Tapis International v. INS, 94 F. Supp. 2d 172 (D. Mass. Apr. 24, 2000), clarifies the statute and corresponding regulations so as to make the H-1B available in a wider variety of jobs than the Immigration and Naturalization Service (INS or Service) might like.

The H-1B is the nonimmigrant (temporary) visa classification so heavily used by high-tech companies and other employers of foreign professionals that the INS, only six months into this fiscal year, estimated that the annual allocation of 115,000 visa numbers was already exhausted. The resulting INS hold on approving petitions for new H-1B workers has triggered a complex struggle in Washington in which Democrats and Republicans jockey for credit to pass legislation that would lift the present numerical cap.

Tapis concerns the statutory requirement for all H-1B workers that the job they seek to fill involves a "specialty occupation." Conceptually, the INS has to take up that issue before it decides whether the individual meets the requirements for the job.

The statute defines a specialty occupation as an occupation that "requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." INA § 214(i)(1); 8 U.S.C. § 1184(i)(1). To qualify as a specialty occupation under the INS regulations (8 C.F.R. § 214.2(h)(4)(iii)(A)), the position must meet any one of four tests:

"(1)-- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2)-- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3)-- The employer normally requires a degree or its equivalent for the position; or

(4)-- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree."

The plaintiff, Tapis International, is an interior design firm that provides services to New England designers, decorators, and architects. In 1994 Tapis successfully obtained approval of an H-1B petition for a foreign national as a showroom manager. However, when Tapis sought to extend the petition in 1997, the INS denied it.

Although the individual was amply qualified for the job with a master’s degree in business administration plus experience and an associate degree in design, the INS’s Administrative Appeal Unit (AAU) agreed with the denial. As an individual could qualify with a degree in "marketing, business administration or a related field," the AAU found that the job did not involve a specialty occupation. The practice of other such firms in accepting a range of baccalaureate degrees reinforced the AAU’s conclusion that the degree requirement was not specific enough to qualify the position as a specialty occupation.

Tapis appealed to federal district court, claiming that the AAU decision was an abuse of discretion because it relied on an improper interpretation of the INS criteria and was at odds with its earlier grant of status. The court agreed:

While the INS is provided substantial deference in interpreting its regulatory guidelines, its interpretation is not controlling where "’it is plainly erroneous or inconsistent with the regulation.’" . . . Here, the INS’s interpretation is suspect, not because of what it reads into the statute, but because of what it reads out. The INS was not unreasonable in interpreting the guidelines to demand that an employer require a degree in a specific field. Otherwise a position would qualify if any bachelor's degree were required. What the INS ignores is that the guidelines allow for a bachelor's degree or its equivalent. By ignoring this language, the INS's interpretation precludes any position from satisfying the "specialty occupation" requirements where a specific degree is not available in that field. Thus, in this case, [the employee’s] position could not qualify unless he obtained a degree in interior design showroom management.

Tapis, 94 F. Supp. 2d at 175-76 (citation omitted; emphasis in original).

To have any reasonable meaning, according to the court, "equivalent" must include "not only skill, knowledge, work experience, or training, . . . but also various combinations of academic and experience based training." Id. at 176 (citation omitted). The court found it unacceptable to exclude a position simply because no "specifically tailored baccalaureate program exists [and] the only possible way to achieve something equivalent is by studying a related field (or fields) and then obtaining specialized experience. By including the ‘or its equivalent’ language, the statute and regulations recognize that the needs of a specialty occupation can be met through education, experience, or some combination of the two." Id.

True, it may not be enough to require experience in the specific field plus some type of bachelor’s degree. See All Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379 (S.D.N.Y.1998). But here, for the position of showroom manager, in addition to requiring a bachelor’s degree in a limited number of academic fields, the employer demanded specialized experience in the field of design. Together, these are the equivalent of a specialized baccalaureate degree. The court noted that the employee met these requirements. See 8 C.F.R. § 214.2(h)(4)(iii)(C).

The court also found an abuse of discretion in the Service’s failure to give any explanation for denying this petition after having approved one for the same employer/employee three years earlier on the identical facts, citing Louisiana Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 802 (E.D. La. 1999) (remanding to the AAU with instructions either to grant the petition or articulate a rational basis for its inconsistent decisions). The later history of Louisiana Philharmonic, however, demonstrates how deferential a court can be when once the INS does provide a rationale.

In seeking an H-1B for a Chinese violinist, the Louisiana Philharmonic relied on the fourth basis for characterizing a position as a specialty occupation – that because it is so complex it requires knowledge that is usually associated with a university degree at least at the bachelor’s level. In support of the petition it submitted letters from orchestra directors nationwide showing that a high percentage of their members (often 90-95 %) had such a degree, although it wasn’t an absolute prerequisite. Seizing on the fact that orchestra positions were often filled by blind audition, the adjudicating service center denied the H-1B petition. The AAU affirmed that denial. On appeal, the district court found an abuse of discretion only because the AAU failed to furnish any explanation for its inconsistency in denying this petition after approving several others for the same orchestra that had an almost identical basis. Following a remand, the court accepted as rational the AAU’s explanation that the INS service centers shouldn’t have approved those earlier petitions either. Louisiana Philharmonic Orchestra v. INS, 2000 U.S. Dist. LEXIS 3331 (Mar. 15, 2000). Moreover, those low-level decisions were not precedents or otherwise binding, and didn’t compel the AAU to endorse a repetition of earlier mistakes, the court held, citing Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999) (holding that the INS did not abuse its discretion in declining to follow two prior decisions made in error).

While the court in Louisiana Philharmonic II could be satisfied with the "inconsistency" prong of the INS position, its deference on the substantive issue is hard to swallow: "The INS was within its discretion in defining a specialty occupation in such a way that a position qualifies only if it requires knowledge that is always or nearly always associated with a bachelor’s degree or higher rather than knowledge that is usually associated with such a degree." 2000 U.S. Dist. LEXIS 3331, at *10. This in the face of uncontradicted evidence that an overwhelming percentage of orchestra members have at least a bachelor’s degree! How can the regulatory formula of "usually associated" be rationally read to mean "always or nearly always associated"? And how can a "high percentage (often 90-95%)" fall short of "usually" or even "nearly always"? It would have been easier to defer to an INS denial based on the failure to show that the degrees (that orchestra members almost always have) are in music performance.

Indeed, Tapis suggests an alternative approach to considering orchestral music performance as a specialty occupation. Arguably it requires either a specialized degree in music performance or an equivalent degree in music plus years of experience or training in the orchestral instrument.

In considering how the employee will meet the requirements of the H-1B specialty occupation, immigration lawyers regularly rely on the equivalency permitted by the corresponding provision on employee qualifications. See INA § 214(i)(2); 8 U.S.C. § 1184(i)(2); 2 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure § 39.08[3][c] (2000). However, lawyers have paid scant attention to the equivalency provision discussed here. That may be because the Service, as a matter of practice, has generally accepted a position as being in a specialty occupation if the incumbent can get to the starting rung with any of a reasonable range of degrees, e.g., finance, accounting or economics, not just a single kind of degree. But it has often balked at a degree in business administration (the master’s degree held by the Tapis employee) as being too general to support a specialty occupation. See generally Gordon, Mailman and Yale-Loehr § 20.08[3][b]. Here, Tapis may have sought to finesse the problem by mating that degree with specialized experience to create a qualifying equivalent. It might also have characterized the job as "interior designer," a position that our government has acknowledged as ordinarily requiring a specialized degree. See 8 C.F.R. § 214.6(c) (listing professional occupations recognized for TN status under NAFTA). Although the Tapis employee lacked a baccalaureate in interior design, his associate degree in that field, accompanied by his experience and masters degree, was easily the equivalent.

We are clearly seeing in our society a proliferation of activities that require a specialized university education – in terms of the immigration law, "specialty occupations." And within the bounds of the present H-1B provision, we will continue to experience the usual dynamics of "push and contain," as employers and their lawyers seek to expand the range of occupations that warrant a visa, and the INS tries to hold the line. Tapis provides another breach in the line and reinforces the notion that immigration practice, like some other disciplines, is as much technique as it is theory.

http://h-1b-specialty-occupations.blogspot.com/2018/03/h-1b-specialty-occupations.html

https://www.youtube.com/embed/kShpRKe-aCc 

https://www.youtube.com/embed/RMDOdsSw_Uk

https://twitter.com/Immigrationinnj/status/979335144455725056