Published: January 21, 2015
No doubt about it. In the past decade, getting an H-1B work visa filing approved has gotten harder. These days employers and prospective employees have to rush to get their petitions and supporting documentation together each year in time for the magical April 1 filing date, and then only to have a 50% chance of even being considered given that demand for the annual allotment of visas exceeds supply by a 2 to 1 margin. Then, if the parties are lucky enough to have their filing picked for review, everything about the petition is met with thorough scrutiny: the company, the job description and the prospective worker’s qualifications. One aspect of this phenomenon is illustrated in a recent federal court decision ordering the reversal of a US Citizenship and Immigrations Services (US CIS) wrongful denial of an H1B work visa petition filed by a small Michigan rehabilitation clinic on behalf of a prospective worker seeking to fill the position of health services manager.
Generally speaking, the 2 essential plain meaning requirements for an H-1B work visa petition are as follows: 1) a solvent employer genuinely seeking to fill a “specialty” or professional type position i.e. a position typically requiring the attainment of a Bachelor’s degree in a field related to the position, 2) a prospective worker with a Bachelor’s degree or equivalent (e.g. experience can sometimes supplement or substitute for education) in a field related to the position being offered.
In the case of the petitioning rehabilitation clinic in Michigan seeking to fill the full time position of health services manager, US CIS denied the petition because, among other reasons, the position at issue was not one that could properly be deemed either “specialty” or professional. According to the US CIS denial and the adjudicator’s overreaching inferential voyage, objectively speaking, the position only really requires a worker with a Bachelor’s degree in any number of unspecified fields, versus, as required by statute, a degree in a specific field of study. Although the prospective worker possessed a Bachelor’s degree in Healthcare Administration and the employer provided a detailed explanation of why a manager with such an educational background would be required to fill the position, US CIS nevertheless found a way to conclude otherwise.
The employer, knowing the decision failed to stand up to logic and a real world, honest assessment, continued their fight and won. A U.S. District Court in California concluded that “substantial evidence” did not support US CIS’ reasoning or final decision. Indeed, the court accepted the assertion that a Bachelor’s degree in a specific field (Healthcare Administration or closely related) was an essential requirement for the position of health services manager, and ordered approval of the clinic’s H-1B petition for this worker.
PUBLISHED January 21, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois