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Real Estate Group Says USCIS Wrongly Classified UK Hire

09/01/2016

 

LAW 360: Real Estate Group Says USCIS Wrongly Classified UK Hire

By Joyce Hanson

Law360, New York (September 1, 2016, 6:19 PM ET) -- The Utah Life Real Estate Group argued Wednesday in federal court that U.S. Citizenship and Immigration Services wrongly classified a worker from the U.K. as being unqualified for an H-1B nonimmigrant visa, saying the position of marketing analyst is specialized and complex.

The Layton, Utah-based real estate company argued that the USCIS California Service Center should not have denied U.K. citizen Amber May Sheldon’s visa petition because the company's offered position of marketing analyst is a "specialty occupation" and Sheldon’s master’s degree particularly qualifies her as the right candidate to fill the position.

“Plaintiff met its burden of proof to demonstrate that its marketing analyst position is a ‘specialty occupation’ and that Ms. Sheldon has the necessary qualifications, based on the information set forth in the petition and supporting evidence filed with the USCIS,” Utah Life Real Estate Group’s complaint said.

On March 31, Utah Life filed a Form I-129 petition with the USCIS California Service Center, seeking to classify Sheldon as a nonimmigrant special occupation worker under the Immigration and Nationality Act, according to the complaint. The USCIS responded May 24 by issuing a request for evidence, Utah Life filed its response on July 14, and the USCIS “arbitrarily” denied the petition on July 29, the complaint said.

Lewis M. Francis, Utah Life’s legal counsel, told Law360 that the USCIS argued that it didn’t believe a marketing analyst qualifies as a specialty occupation because the Department of Labor’s Occupational Outlook Handbook states that more than one possible bachelor’s degree may qualify a candidate for the position, such as a bachelor’s in business or marketing,

“At least one other U.S. district court has already ruled that it is an impermissibly restrictive interpretation of the applicable statutes and regulations,” Francis wrote in an email to Law360. “The employee in the case at hand has a master’s degree in business administration, with a concentration in marketing.”

The complaint cites similar USCIS decisions that have recently been reversed by district courts in

Raj and Co. v. U.S. Citizenship and Immigration Services and Residential Finance Corp. v. USCIS.

According to the applicable regulation cited in the complaint, the nature of the specific duties allowing for an H-1B nonimmigrant worker visa must be “so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Francis asserted in his email that a marketing analyst position can be as “specialized and complex” as a science, technology, engineering and mathematics, or STEM field, position that more typically qualifies a worker for an H-1B visa.

“Just because an occupation or degree is in engineering or math doesn’t mean that the job duties of a programmer or systems analyst are any more specialized and complex than in a business specialty area like marketing,” Francis said. “Moreover, most of the marketing these days involves digital media and analytics, and therefore requires even more specialized education and computer skills.”

Utah Life Real Estate Group is represented by Lewis M. Francis and Lesley A. Manley of Jones

Waldo Holbrook & McDonough PC.

Legal counsel for U.S. Citizenship and Immigration Services was not immediately available.

The case is Utah Life Real Estate Group v. U.S. Citizenship and Immigration Services et al., case number 1:16-cv-00121, in the U.S. District Court for District of Utah, Northern Division.

--Editing by Patricia K. Cole.

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