CSC Discussion Group Summary

The AILA representatives were:

Cynthia Lange
Kathrin Mautino
Angelo Paparelli
Nancy-Jo Merritt
Jeff Appleman [Jeff participated in the planning for the meeting, but was unable to attend]
Crystal Williams [AILA National Office]

Dona Coultice, Director of the CSC, led the INS group.  The other CSC representatives were:

Howard Dison
Nancy Albe
Ernie ______
Joe Holiday
Sheila Fisher
Blake Odo
Rachel Wilcox
Mary Agnelly
Also present was Pandora Wong, from DOL, Region IX

On March 9, 2000, a group from AILA sat down with a group from the CSC to discuss the definition and treatment of “specialty occupations.”  The discussion’s focus was on trying to clarify the INS thinking that underlies the recent rash of H-1B denials.  AILA pointed out the legislative history of the 1990 Act with respect to Congress’ intent to expand the interpretation of eligibility for the H-1B category.  INS, on the other hand, seems to take a receding view of eligibility.  The following observations were made by the INS participants:

Jobs in flux.  The CSC takes the view that the nature of many occupations has changed in recent years, such that a number of jobs that once required a degree no longer require one.  One INS participant noted that her son, who is only graduating from high school, is being courted by tech companies for computer industry jobs.  Some jobs in these categories (such as website designer, computer graphic designer, programmer, etc.) are seen as being performed sometimes by high school or 2-year graduates, and sometimes by professionals with degrees.  The point is to convince the CSC that a given job falls on the side of the continuum that requires the degree. 

Avoid minimalist/DOT job descriptions.  INS participants seem to regard the provision of short and general job descriptions, or of descriptions lifted directly from the DOT, as practically an invitation to deny.  Adjudicators indicated a willingness to “stretch” to approve when they know about the company (Intel and Microsoft were specifically mentioned), but are unlikely to do so for a company they don’t know.  Also, there is a constant evolution and changeover of adjudicators, meaning that each new adjudicator is not necessarily informed by past knowledge obtained at the CSC.

Identify which criteria under 214.2(h)(4)(iii)(A) you are relying on.  You must demonstrate that one of the four alternative criteria for proving the position is in a specialty occupation is met.  Spell out which categories you are trying to prove, and provide evidence to back up the assertion.  If the adjudicator thinks you’ve proven the case in any one category, the petition will be approved.  If the adjudicator thinks you are “getting there” with respect to at least one category, an RFE would be issued.  If the adjudicator doesn’t know which category you’re trying to prove, the case will be denied (or a “kitchen sink” RFE will be issued).  “The four areas are optional; we only need one, and if we can’t tell which one you are relying on, we may choose one that doesn’t meet the requirements.”  The example given was “web page designer.”  “Our children design web pages.  What is it about your requested web page designer’s duties that places that job in one of the four categories?”  Graphic designers were mentioned again in this context, as requiring only a two-year degree.  If you have a petition for a graphic designer, you need to point to which of the four categories supports the specific job in the petition. [During this part of the discussion, the supervisors were nodding affirmatively, clearly in strong agreement.  The job title alone is not sufficient.]

If using “the employer normally requires a degree” criterion, take extra care.  The adjudicator has to be convinced that the degree is more that an employer preference. (Example given:  Everyone that the employer hires as a taco vendor has a degree.  That doesn’t mean that the job truly requires a degree.) INS doesn’t like to adjudicate based on the job definition, but instead looks to what is so specialized about the job.  INS will look elsewhere to see if a job is really a specialty occupation, such as the employer’s internet web site regarding what jobs are open and what is advertised on the web as requirements (therefore, if you are presenting requirements different from what’s on the employer’s website, you need to explain the differences).  Adjudicators also feel that there are people working in the Service Center who “are very knowledgeable” about certain occupations, so the adjudicators may check with them.

How to prove that the employer normally requires a degree.  The CSC strongly prefers that the employer prove the educational background of those in the job now, rather than in the past.  If there are not others in the job now, the background of the last incumbent is helpful (if the last incumbent failed in the job because he didn’t have a degree, this can be helpful to the case).  If you don’t  affirmatively address the background of the last person in the job, an RFE may ask you to address it.

Where jobs that appear to be alike have different levels of difficulty.  It was acknowledged that some apparently similar jobs within an employer’s business can have different levels of sophistication, and thus different levels of requirements.  It can help to point this out and expand on it.  For example, if an employer has a grouping of junior level jobs that perform some of the less complex duties associated with a particular occupation, indication of this can help to prove that there are other jobs that concentrate on the more complex duties:  in other words, simpler duties are left to the positions that don’t require a degree, while the more senior people in the same apparent occupation would need a degree because they are not involved in those simpler duties.

Proving that the degree requirement is common to the industry.  To show that the companies you are using for comparison are in the same industry, present evidence of how you are defining the industry.  Unlike the DOL prevailing wage context, it is fair here to look at such factors as company size and geographic location—“companies of similar size and scope” is an acceptable standard to INS.

All occupations are on the table.  There is no occupation that one can assume will be considered a specialty occupation just because it always has been.  “Predictability creates an issue,” according to the Service Center Director.  Industries are changing rapidly, and she wants adjudicators to perform real analysis of job duties, rather than just looking at job titles.  For example, a job may be called Engineer, but if too many duties are really those of a technician, the job is not a specialty occupation.

Role of precedent decisions and adverse information.   Adjudicators noted their belief that there will be times that a precedent decision will be deemed outdated and thus not followed.  AILA pointed out that precedent decisions are binding unless INS announces that it will contest the precedent.  AILA also reminded the INS of its obligation to provide evidence of adverse information leading to a denial.

The DOT’s SVP is not a factor.  Pandora Wong discussed how the SESAs use the DOT and OOH primarily to compare wage information.  She said that the DOL does not question the SVP level once the SESA has determined a wage level.  There had been some concern by practitioners that the CSC was relying heavily on the OOH.  The CSC staff was derisive of the use of DOT job descriptions, and also of the use of the SVP.  Mary Agnelly said that INS had been advised that the SVP “does not serve our purposes.”  The AILA group pressed the SVP as a useful guide to educational level, as having been prepared by a sister agency after extensive research and surveys.  The CSC staff did not seem receptive.

Smaller companies are questioned more.  If a company has only a handful of employees, it is more likely that the CSC will have questions (particularly if the job duties are straight from the DOT).  You should give evidence that the company really needs someone in this position, such as showing volume of transactions.  A case in which a company had four H-1B petitions showing salaries that together exceeded the company’s gross income was given as an example of a questionable situation.  Situations such as upcoming IPOs, private financing, and positioning for selling the company were pointed out as possible, and increasingly frequent, scenarios explaining such phenomena.  INS suggested that the documentation include such information to overcome these potential problems.  In response to sensitivities about confidentiality in such circumstances, INS suggested the petitioner either take its chances or wait until after the situation can be made public to petition for the person.  AILA noted that there is an Executive Order regarding minimization of disclosure that provides guidance in this regard.

The relationship between the company’s business needs and the position is crucial.  A small company with five or six employees requesting a full-time accountant should be prepared to demonstrate the need for the accountant, such as showing a high volume of transactions.  Differentiate the company’s need from what an outsider might expect is needed.  The example given by the CSC was a successful H for a gardener/anthropologist at Williamsburg. 

INS feels scrutinized on these issues.  The Service Center Director indicated that she feels under considerable pressure from Congress and the press with respect to letting “fraud” go undetected.  At the same time, she is starting to feel pressure from the other side (noting in particular the Lofgren hearing) about unwarranted denials and delays.

Problems in sorting out fraud.  Adjudicators noted that a lot of the “kitchen sink” RFEs are attempts to sort out potential fraud at the adjudications level so that it does not have to send the case to Investigations.  It was acknowledged that these generalized laundry lists are symptoms of the adjudicators being reluctant to say what is really bothering them about the case for fear that they will give away what cues them to look deeper. AILA members suggested that the RFEs be more directed, perhaps asking for evidence of the company’s bona fides and suggesting some documentation that could satisfy the INS’ suspicions, rather than sending long lists that don’t state the problem but seem to require every piece of documentation listed, down to the fire escape plan.  INS noted that background material on the company filed up front can help, particularly for those companies that are not household names.

Proving equivalency.   The CSC is more apt to recognize experience as equivalent to a degree if there is some education to back it up.  If there is only a bare 12 years of experience, it is particularly important to show that the experience was progressive and to show such evidence as the qualifications (i.e., degree) of the person’s supervisors in those jobs.  Letters from the prior employers can be particularly helpful.

Proving the degree requirement is specialized.  INS reminded that the job doesn’t just have to require a degree—it must require a degree in a specialized field.  One question that is often asked by INS is whether the degree can be obtained in the U.S.  INS pointed to fields (such as textiles) where U.S. programs are usually only 2-year.   The battle will be more uphill to show these are specialty occupations.  College catalogues from U.S. schools showing the existence of the  4-year course of study can be helpful, particularly for fields that are rare in the U.S.  For more common fields in which the programs tend more to be 2-year, multiple college catalogues would be needed to be persuasive.

Adjudicators’ pet peeves.  When the adjudicators were asked what really drives them crazy, some answers were:  when the job title doesn’t reflect the duties described; when the support letter just says “please refer to the OOH”; when the Form 1020 is completed but the answers only say “see enclosed”; on EOS’s, the major field of study, highest degree completed and salary are not stated; on the supplement when the prior periods of stay question is not completed.