In the past few years, USCIS has been issuing H1B denials asserting the job position does not qualify as a specialty occupation and H1B caliber if the degree is not specifically related to the field of study or position.
In April 2018, the plaintiff, InspectionXpert Corporation (IXC), filed an H-1B petition for a Quality Engineer position for Sathish Kasilingam. The beneficiary has a master’s degree in mechanical engineering, and his job required the use of his knowledge of CAD [computer-aided design] and mechanical engineering to develop, design, and execute software test plans, scenarios and scripts for [IXC’s] CAD-focused software in order to identify software problems and their causes. Despite being selected in the H-1B lottery, USCIS denied his case.
Following the recent update on this case, U.S. Magistrate Judge L. Patrick Auld rejected the USCIS’s assertion. USCIS stated, “The issue here is that the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics, e.g., nuclear engineering and aerospace engineering. Thus, a general degree in engineering or one of its other subspecialties, such as civil engineering or industrial engineering, is not closely related to mechanical engineering.”
The court stated that USCIS denied the petitioner’s H1B position on the grounds that the job does not require a degree in a specialty occupation. Judge Auld declared that “A position can qualify as a specialty occupation even if it permits a degree in more than one discipline.
” The court said that USCIS interpreted the term too narrowly, applying an unlawful ‘subspecialty’ rule while the regulation requires only a specialty degree. So, if the position requires a range of engineering degrees, it can qualify as a specialty occupation, since ‘engineering’ is a specialty degree.
Before deciding against the USCIS, the judge provided more than 13 pages of detailed history on the qualifications for an H-1B specialty occupation, including a discussion of degrees. As Judge Auld’s decision is to be followed, USCIS’s capacity to deny H1B petitions based on an unrelated degree will be limited, which will be good news for employers and immigration attorneys.
Related Blogs: https://emandilaw.com/immigration-update/