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.

Leave a Reply