The HMA LAW FIRM

Youtube Instagram Twitter Facebook Linkedin
  • By: adminhmalegal
  • Jun 1
  • Comments (0)

The H-1B visa status has perhaps one of the largest bodies of law regulating it than any other nonimmigrant status.  The H-1B is the temporary professional work visa.  It’s good for 3 years, and renewable for another 3 (and often beyond that, under certain circumstances.)  In practice it often serves as the bridge between a foreign student’s visa and an employment-based green card.

Among other things, one requirement for an H-1B is that the job must be a “specialty occupation.” It is not necessarily difficult to define a “specialty occupation.” Rather, the lawyering comes from persuading USCIS that a particular job fits into that category.

In a recent case, HMALF attorneys were confronted with a delicate problem.  At issue was a job in the optometry field.  The candidate was to perform many of the same duties as a licensed optometrist (although the position did not require a license) but significantly more responsibility than that of an optometric technician.  Simply put, it wasn’t just fitting contact lenses, but it wasn’t quite prescribing them, either.

“Specialty occupation” is defined in great detail at 8 CFR §214.2(h)(4)(ii).  The lynchpin of its requirements, however, is that a bachelor’s degree is required.

And so here was the problem.  How to persuade USCIS that this job was more than a technician (which requires no bachelor’s) but was not the “practice of optometry” which would require a license?

In our response to USCIS, we began by a stating the law on what a specialty occupation is.  We also provided the definition of the practice of optometry.  We then applied the factors in 8 CFR §214.2(h)(4)(iii)(A) and demonstrated that the job’s requirements met each of the 4 required tests.  We then showed how each of these tasks failed to meet the definition of the practice of optometry, and therefore could not require a license.

That probably would have been enough, but legal arguments should be airtight.  So we also drew a parallel to a “medical technologist” occupation.  This raised an interesting issue: some occupations may not be considered specialty occupations at one point in time, but later, because the field itself changes, that same position may become a specialty occupation.  This is exactly what happened to medical technologists.  Matter of Panganiban, 13 I & N Dec. 581 (Comm. 1970).  Thus, we forced USCIS to consider the possibility that this position was new and would have to be fully analyzed in light of the legal requirements, instead of just drawing a parallel to older cases.

But there was still another objection USCIS could make: questioning the employer’s requirements.  This job looked much like a paraoptometric.  Paraoptometrics also lie between technician and optometrist, but  you don’t have to have a bachelor’s degree to be one. Hence, it  would not be a specialty occupation . If USCIS relied on government databases, it could have found that we had failed to prove that the job was a specialty occupation, and then denied the H-1B.

So we also included legal authority that the “Service must give deference to the employer’s statements and description of a position, and must consider fully the employer’s evidence and should not rely simply on “standardized government classification systems.” Unico American Corp. v. Watson, Case No. CV 89-6958 (C.D. Cal. Mar. 19, 1991).  In other words, listen to the employer, not a government database.

USCIS approved the H-1B petition a few days later.

  • Share:
Previous Article: WHEN IS A CRIMINAL ALIEN A CRIMINAL?
Next Article A MARRIAGE IS A MARRIAGE, BUT IS A DIVORCE A DIVORCE?

Add your Comment

You must be logged in to post a comment.

Categories

  • Appellate
  • Asylum
  • Business Law
  • CBP
  • Citizenship
  • Constitutional Rights
  • Criminal
  • Criminal Law
  • DACA
  • Deportation
  • Drugs Crime
  • Education Law
  • Family
  • Family Law
  • Framing
  • General
  • H 1B
  • Hma Law Firm
  • Immigration
  • Immigration Policy
  • Immigration Reform
  • International
  • Interns
  • Muslim Ban
  • National Security
  • Personal Injury
  • Politics
  • Removal
  • Syria
  • Tanton FOIA Lawsuit
  • Trump
  • Uncategorized
  • Waivers

Tags

Accident Attorney Consultation Crime Criminal DACA daca immigration daca in full effect daca news today DACA policy Fraud Hassan Ahmad hmalawfirm Immigration latest news on daca Law Lawyer Michigan Supreme Court Supremecourt ruling on Tanton Papers Tanton Papers Secret trump administration

Recent Posts

  • Filing Form N-600K To Apply For Citizenship Based on Parentage 24 Nov 2021
  • VISA BULLETIN JUNE 2021 16 Oct 2021
  • Driver license for undocumented migrants: Virginia 04 Oct 2021

Contact Us

  • Head Office Address8133 Leesburg Pike #801, Vienna, VA 22182, United States
  • Phone: +1(703) 964-0245
  • Email: [email protected]
  • Website: www.hma-legal.com

Contrary to popular belief, Lorem Ipsum is not simply random text. It has roots in a piece of classical Latin literature

Quick Link

  • Home
  • Home
  • Home
  • +1(703) 964-0245 (Click to call)
  • +1(866) 996-1431 Toll-Free available during. Office hours.
  • [email protected]
  • 8133 Leesburg Pike, Ste 801 Vienna, VA 22182
Youtube Instagram Twitter Facebook Linkedin
Pay Here
A convinient and secure way to make your payment
Click here to pay

The HMA Law Firm Does Not And Shall Not Discriminate On The Basis Of Race, Color, Religion (Creed), Gender, Gender Expression, Age, National Origin (Ancestry), Disability, Marital Status, Sexual Orientation, Or Military Status, In Any Of Its Activities Or Operations. These Activities Include, But Are Not Limited To, Hiring And Firing Of Staff, Selection Of Volunteers And Vendors, And Provision Of Services. We Are Committed To Providing An Inclusive And Welcoming Environment For All.

©2009 – 2020 by Hassan M. Ahmad. All rights reserved. No portion of this website may be copied or reproduced for any purpose without express written permission.