UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
“The evidence in the record does not compel findings contrary to those made by USCIS. Noting that the Court may not substitute its judgment for that of USCIS, the Court concludes that USCIS’s determination that the Operations and Finance Analyst position is not a “specialty occupation” is reasonably supported by the evidence. Considering the record as a whole, USCIS’s decision to deny the petition was neither arbitrary nor capricious. Defendants are thus entitled to judgment, and Plaintiff is not entitled to judgment on its claim for declaratory relief. Consequently, Defendants’ motion for summary judgment is properly granted, and Plaintiff’s motion for summary judgment is therefore denied.” – Palace Wine and Spirits, Inc., Plaintiff, v. United States Citizenship and Immigration.
…The only dispute between the parties for purposes of the motions before the Court is whether or not the position at issue constitutes a “specialty occupation.” No genuine issues of material fact exist with respect to the asserted claims.
An employer may file an H–1B petition for a nonimmigrant to temporarily perform services in a specialty occupation in the United States. 8 U.S.C. §§ 1101, 1184(c). Pursuant to 8 U.S.C. § 1184(i), a “specialty occupation” requires a “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.” 8 U.S.C. § 1184(i); see also 8 C.F.R.
§ 214.2(h)(4)(i)(A)(1). A position must meet one of the following criteria in order to qualify as a specialty occupation:
1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2) 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;
3) The employer normally requires a degree or its equivalent for the position; or
4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 8 C.F.R. § 214.2(h)(4)(iii)(A). The petitioning employer bears the burden of establishing that the alien worker is entitled to the visa by demonstrating that: (1) the position sought qualifies as a specialty occupation; and (2) the alien worker is qualified to perform services in the occupation. Alliance Home Health Care, 2012 WL 950021, at *4 (citing Shanti, Inc., 36 F. Supp. 2d at 1151).
Here, there is no dispute that Protashchuk is qualified to perform the services of an Operations and Finance Analyst. Protashchuk’s education and experience are not contested. Rather, the disagreement centers around USCIS’s determination that the Operations and Finance Analyst position at issue is not a “specialty occupation.” Having considered the record, the Court finds that USCIS did not abuse its discretion in determining that the Operations and Finance Analyst position is not a specialty occupation.USCIS found that “the proffered position’s duties most closely related to the [Occupational Outlook] Handbook’s description of operations research analysts.” (Admin. R. 6.) USCIS concluded, however, that the record failed to “establish that any related duties to be performed by the beneficiary would require the practical and theoretical application of a body of highly specialized knowledge attained by at least a bachelor’s degree, or the equivalent, in management, or business administration with an emphasis in management as required,” and consequently denied the petition.2 (Id.) USCIS noted that the Occupational Outlook Handbook (the “Handbook”) “indicates that operations research analysts do not constitute an occupational group that categorically requires a specialty-occupation level of education,” and further remarked that “while the Handbook reports that a bachelor’s degree is usually the minimum educational requirement for many operations research analyst jobs, a bachelor’s degree alone is not sufficient for all positions in the occupational category to be recognized as specialty occupations.” (Id. at 8.)
Not only did USCIS conclude that Plaintiff failed to demonstrate that the Operations and Finance Analyst position in question “involved the theoretical and practical application of a highly specialized body of knowledge,” it also concluded that Plaintiff failed to establish that the position satisfies any of the criteria of 8 C.F.R. § 214.2(h)(4)(iii)(A). (Id. at 9.) Considering the Handbook, and other relevant factors, USCIS found that Plaintiff lacked substantive evidence of an industry-wide requirement of at least a bachelor’s degree in a specific specialty for similar positions. (See id. at 10-11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). USCIS further concluded that “the record is devoid of sufficiently detailed information to distinguish the proffered position as unique from or more complex than similar positions that can be performed by persons without at least a bachelor’s degree in a specific specialty or its equivalent.” (Admin. R. 11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). Also, noting the absence in the record of Plaintiff’s prior hiring history for the position, USCIS determined that Plaintiff had not demonstrated that it normally requires at least a bachelor’s degree in a specific specialty for the position so as to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). (Admin. R. 12.)Finally, USCIS cited Plaintiff’s failure to present “any evidence to show that the skills utilized in its daily operations are so specialized and complex that the knowledge required to perform the duties of the proffered position is usually associated with the attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty.” (Id. at 12); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The evidence in the record does not compel findings contrary to those made by USCIS. Noting that the Court may not substitute its judgment for that of USCIS, the Court concludes that USCIS’s determination that the Operations and Finance Analyst position is not a “specialty occupation” is reasonably supported by the evidence. Considering the record as a whole, USCIS’s decision to deny the petition was neither arbitrary nor capricious. Defendants are thus entitled to judgment, and Plaintiff is not entitled to judgment on its claim for declaratory relief. Consequently, Defendants’ motion for summary judgment is properly granted, and Plaintiff’s motion for summary judgment is therefore denied….
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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).