If The Job Duties Are Complex, The Chances Of Winning An H-1B Visa Are Better
The United States Citizenship and Immigration Services (USCIS) is especially tough with respect to H-1B petitions filed on behalf of foreign nationals working occupations that do not readily require specialized bachelor’s degree. Thus, it is easier to obtain an H-1B visa for an attorney or architect since a professional degree is a mandatory requirement for entry into these occupations. On the other hand, foreign nationals being sponsored to work in the culinary arts or in emerging media fields have a tougher time winning an H-1B approval.
It was thus heartening to learn that the Appeals Administrative Office (AAO) recently reversed a denial of an H-1B petition that was filed by an action film entertainment company on behalf of a foreign national who would be employed as a Film and Video Director. This unpublished decision, Matter of __________, WAC 04 172 53199, is available on AILA InfoNet at document ID # 06082260.
To qualify for an H-1B visa, the prospective foreign national employee must work in a “specialty occupation.” Section 214(i)(1) of the Immigration and Nationality Act (INA) defines “specialty occupation” for H-1B purposes as an occupation that requires:
theoretical and practical application of a body of highly specialized knowledge; and
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.
The implementing regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A), provides four criteria on how to qualify a foreign national for a specialty occupation, as follows:
A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
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;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associates with the attainment of a baccalaureate or higher degree.
In reversing the denial of the H-1B petition by the California Service Center, the AAO listed in great detail the foreign national’s proposed duties as Film and Video Director. The duties included interpreting the screenplay, communicating with actors and camera personnel, development of script with the producer, selecting locations, work out all camera angles, directing the actors and directing performance of all on-camera talent, to name a few.
Although the AAO did not provide details as to why the California Service Center denied the H-1B petition, it concluded that despite the fact that the made reference to the Department of Labor’s Occupational Outlook Handbook (DOL Handbook), not mentioning that a baccalaureate education in a specific specialty is normally the minimum for entry into such positions, this position was sufficiently complex to require a bachelor’s degree.
The AAO, therefore, relied on the 4th prong of the regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), analyzing that the position was so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The relevant extract from the AAO’s decision is worth noting:
“Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications. Motion- capture is an area of expertise that requires the use of specialized equipment and personnel. Further, the beneficiary is involved in virtually all areas of project production and development, including the editing of the final project. Under these circumstances, the petitioner has established the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).”
The AAO’s snubbing of the official job description in the DOL Handbook is good news as the USCIS Service Centers have denied H-1B petitions by mechanically adhering to it. In a similar decision, Matter of _________, WAC-02-136-52595 (AAO Dec. 13, 2002), the AAO reversed the California Service Center’s determination that an Executive Pastry Chef did not qualify as a specialty occupation. Here too, the California Service Center relied on the DOL Handbook to determine that the occupation of pastry chef did not necessarily require a bachelor’s degree. The AAO, however, reversed the decision by noting that the job description described in the H-1B petition for the pastry chef was more complex than that described in the DOL Handbook. For instance, the pastry chef was expected to supervise the restaurant’s pastry department, which would make unique pastry creation and oversee the activities of three chefs. The pastry chef would also plan menus, develop recipes, estimate food consumption, and direct methods of pastry preparation and baking techniques to conform to French standards, among other managerial duties.
The AAO thus commendably held that even though the Handbook did not explicitly state that an occupation required a bachelor’s degree, it was necessary to consider the complexity of the duties described by the petitioner in the H-1B petition.
In conclusion, petitioning employers should take great pains in fleshing out the duties of the position when filing an H-1B petition. In the event that the DOL Handbook does not state that the occupation in question requires a bachelor’s degree, it is imperative that the employer be able to justify that the position is complex and specialized to require a bachelor’s degree. It would also be helpful for the employer to show that it has hired others in the past with the same degree requirements, industry articles and other information about the minimum entry requirements into these occupations as well as descriptions of US college programs leading to degrees in the specialty occupation.
If the industry or occupation does not always require a bachelor’s degree, and the employer is unable to establish that the position is more specialized and complex then the industry standard , the H-1B petition may fail. For instance, an H-1B petition filed on behalf of a violinist by a symphony orchestra did not succeed as the employer was unable to establish that the position always, rather than usually, required a bachelor’s degree. See Louisiana Philharmonic Orchestra v. INS, 44 F.Supp, 2d 800 (E.D. Lou. 1999); denial upheld after remand 2000 U.S. Dist. LEXIS 3331 (Mar. 18, 2000).
AAO Decision On Film And Video Director
This article originally appeared on www.cyrusmehta.com on August 25, 2006.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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