The HMA Law Firm - Immigration & Criminal Defense Lawyers

Call: 703.964.0245

  • Home
  • Our Team
  • Practice
    • Immigration >
      • Employment-Based Immigration >
        • The H-1B Visa
        • Investor and Intracompany Transfers (E & L Visas)
        • PERM Labor Certification >
          • Cross Chargeability
          • EB-5 Green Cards
      • Marriage & Fiancé Visas >
        • Special Service for Servicemen
        • Marriage Interview Questions
        • The I-751 Good Faith Waiver
        • Evidence for Filing an I-751
        • My I-751 Was Denied: Now What?
        • Same-Sex Marriage Immigration Issues
        • New 90 Day Rule
      • General Immigration >
        • Filing a FOIA from USCIS
        • Form G-639: How to Complete
        • Re-Entry Permits
        • TPS >
          • More on TPS
          • SYRIA TPS
          • TPS Yemen
        • U Visas
      • Legal Victories
      • How To Choose The Right Immigration Lawyer
      • Waivers (I-601/I-601A) >
        • Drunk Driving (DUI/DWI) and I-601/I-601A Waivers
      • Citizenship >
        • N-648 Medical Waivers
        • Naturalization Pitfalls
        • The Civics Test for Naturalization
        • Exceptions for English Test
        • Criminal Convictions and Naturalization
      • Mandamus: It's Taking Too Long >
        • Mandamus: What to Think, What to Expect
        • How an Immigration Writ of Mandamus Works
        • Petition for Hearing on Naturalization
      • Deportation Defense >
        • Overview of Removal Proceedings
        • Deportation: Preventive Maintenance
      • Deferred Action (DACA) >
        • To Lawyer Or Not To Lawyer
        • Applying for a Social Security Number
    • Criminal Defense >
      • Traffic Offenses
    • Learn >
      • Immigration In A Nutshell >
        • The Visa Bulletin and Family Immigration
      • Criminal Immigration Law 101 >
        • Know Your Rights
      • Eligibility for Citizenship >
        • Citizenship versus Naturalization
        • Why Become a Citizen?
  • Consult/Pay Fees
  • Testimonials
  • Careers
  • Blawg
  • En Español
    • Accion Ejecutiva
    • El Interdicto Temporal
    • Buscar Detenido
    • Reforma Inmigratoria
    • Papeles Por Los Indocumentados

The HMA Law Firm Blawg

    Question? Contact a lawyer now!

Submit

H-1B Holders Occupy a Special Position

2/22/2010

5 Comments

 
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.

5 Comments
    DISCLAIMER: If a blog post you read here contains case results, be advised that case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.

    Authors

    Sharifa Abbasi, Esq.
    Hassan M. Ahmad, Esq.
    Humza Kazmi, Esq.
    Faisal Khan
    ​Valeria Prudencio
    Carly Stadum-Liang, Esq.

    Archives

    September 2020
    August 2020
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    August 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    May 2014
    April 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    April 2012
    January 2012
    December 2011
    August 2011
    March 2011
    February 2011
    July 2010
    April 2010
    March 2010
    February 2010

    Categories

    All
    Appellate
    Asylum
    CBP
    Citizenship
    Constitutional Rights
    Criminal
    DACA
    Deportation
    Family
    Framing
    General
    H 1B
    H-1B
    Hma Law Firm
    Immigration
    Immigration Policy
    Immigration Reform
    International
    Interns
    Muslim Ban
    National Security
    Politics
    Removal
    Syria
    Tanton FOIA Lawsuit
    Trump
    Waivers

    RSS Feed

Quick Links

  • Our Team
  • Practice Areas
  • Executive Action
  • Consult

Contact Info

8133 Leesburg Pike, Ste 801
Vienna VA 22182

Tel:  703.964.0245

Fax: 703.997.8556
Email: info@hmalegal.com

Subscribe to the HMA LawFeed

Picture

​Pay Fees Here

Book you consult online by clicking on this link now!

©2009 - 2021 by Hassan M. Ahmad. All rights reserved. No portion of this website may be copied or reproduced for any purpose without express written permission.

Photos used under Creative Commons from Beshroffline, Thorne Enterprises, alex-s, swanksalot, 401(K) 2012, hyku, Gage Skidmore, Gage Skidmore, michaeln3, Antony J Shepherd, Korean Resource Center 민족학교, Don Fulano, lewebafricain, Images_of_Money, Lord Jim, Kevinth Nunez, Joe Crimmings Photography, Cohen.Canada, Thane Eichenauer, Gage Skidmore, CGP Grey, digitalshay, anokarina, Debbie Ramone, slightly everything, loop_oh, aaron_anderer, U.S. Marshals Service, tsuacctnt, Andrew Feinberg, Official U.S. Navy Imagery, Soggydan, Keith Bacongco, photosteve101, Emery Co Photo, futureatlas.com, david_terrar, weiss_paarz_photos, juanktru, Anh Le Tran's Photogphy, Amanda M Hatfield, IcronticPrime, Fibonacci Blue, blvesboy, Carl Montgomery, zappowbang, khawkins04, kennethkonica, opensourceway, Supernico26, mynameisharsha, JBrazito, Glyn Lowe Photoworks, Justin A. Wilcox, Wesley Fryer, MAClarke21, khalid Albaih, Chairman of the Joint Chiefs of Staff