H1B For Market Research Analysts

Introduction

In today’s hypercompetitive business environment, where organizations are invariably caught up in a race to grab the attention and interest of customers and converting them to concrete sales, Market Research Analysts have become an important and essential resource for many organizations. Market Research Analysts play a key role in helping companies to understand the market and their target customers better. Gathering and analyzing relevant data, Market Research Analysts provide vital information to their employers helping them make crucial decisions about the business. The fact that they are employed in diverse industries is indicative of the growing importance of Market Research Analysts in today’s organizational set-up.

While the need for Market Research Analysts continues to grow, employers face ever-growing resistance from U.S. Citizenship & Immigration Services when trying to hire Market Research Analysts pursuant to the H-1B visa classification. Employers are faced with the arduous task in establishing and proving that the proposed employment as a Market Research Analyst satisfies the requirements stipulated for the H-1B. USCIS often denies H-1B petitions for Market Research Analysts citing that it is not a “specialty occupation”.

H-1B petitions for Market Research Analysts often generate “Requests For Evidence” (RFE’s) and in many cases, results in the ultimate denial of these petitions. This is especially true for small to mid-sized businesses and those that have been operating for only a short time. While H-1B’s for Market Research Analysts for larger or clearly expanding companies fare much better, there is still a great amount of resistance from USCIS.

Interestingly, even the US Courts have gotten involved in the battle over Market Research Analysts.  While there is a Federal District Court decision stating that Market Research Analyst can be a specialty occupation, H-1B petitions for the position are still under scrutiny by USCIS.  In 2012, the Southern District of Ohio District Court rejected USCIS’s narrow interpretation of the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) and directed granting of H-1B status to the beneficiary as a Market Research Analyst [Residential Finance Corporation vs. USCIS].

Despite the outcome, however, USCIS continues to heavily scrutinize the occupation.  Let’s take a brief look at the court decision to better understand how USCIS views the Market Research Analyst occupational category.

Brief Background And The Court’s Decision:

The plaintiff/petitioner, a mortgage lender, filed an H-1B visa petition with USCIS to employ a foreign national beneficiary as a Market Research Analyst. USCIS requested additional evidence and the plaintiff responded to the same. Subsequently, the H-1B petition was denied, and the plaintiff chose to seek a judicial review of the denial before the U.S. District Court instead of appealing to the USCIS Administrative Appeals Office in Washington, D.C.

USCIS’s main point of contention was that a Market Research Analyst was not a specialty occupation, i.e. a baccalaureate or higher degree in a specific academic discipline was not necessary to be a Market Research Analyst. One of USCIS’s sole basis for denying the petition in question was that although the Department of Labor’s 2010-11 edition of the Occupational Outlook Handbook (OOH) recognized that a baccalaureate was generally the minimum educational requirement for entry into the professions that involved market and survey research, the OOH did not indicate any specific degree.  USCIS argued that the absence of one specific specialty degree requirement for entry into the profession, by definition, meant that the plaintiff’s petition did not meet the standard for specialty occupation.

The court observed that the USCIS’s approach was far too narrow. The court rejected the notion that “specialized study” or field means one specific degree.  It observed that “[t]he knowledge and not the title of the degree is what is important” and held that “[w]hat is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge.”

The court found that the position in the petition as Market Research Analyst did meet the definition of a specialty occupation, taking into consideration, among other factors, that:

• The beneficiary was a recent graduate who obtained a Bachelor of Science degree in marketing and finance and his course work included financial accounting, spreadsheets, databases, statistical concepts, managerial accounting, marketing behavior, marketing research, and money markets;
• The record indicated that a minimum requirement for entry into the position of a Market Research Analyst is the specialized course of study in which beneficiary engaged;
• The record included specific job duties, not generic duties as alleged by USCIS; and
• the record indicated that a Market and Survey Researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields; the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that plaintiff sought to employ him in such a position;

As a testament to market realities and the petitioner’s real business necessity, the District Court here echoed the opinion of business owners and immigration practitioners across the U.S. – that a Market Research Analyst position may qualify as a specialty occupation for H-1B if documented evidence establishes that the position is one for which the normal minimum entry requirement is a baccalaureate or higher degree, or its equivalent, in a specific specialty closely related to the position’s duties, along with establishing other requirements that are necessary for approval of an H-1B.

Key Takeaways For Market Research Analysts And The H-1B:

• Just because an occupation may not require “one” specific specialty degree for entry into the profession is not an automatic disqualifier for the H-1B.
• Employers must ensure that the job requirements and the job duties are specific and satisfy the conditions that are necessary for successful approval of an H-1B petition.
• Thorough documentation clearly establishing the need and requirement for a bachelor’s degree for the proffered position and evidence that the beneficiary possess such degree, is vitally important in such cases to improve the chances of approval of the H-1B petition.
• There should be a clear connection or nexus between the required “field” of study and the job duties described for the Market Research Analyst position.
• Job Duties should be specific and well thought-out.  Generic job duties will invite scrutiny.

Conclusion

Considering the additional challenges that an H-1B petition for Market Research Analysts presents, it is extremely important that employers speak with an experienced immigration professional to review their situation and analyze the suitability of H-1B in their situation before making any final decisions.

Contact VisaPro if you have any queries about the H-1B visa, or to receive assistance with your H-1B filing strategies. VisaPro’s best immigration attorneys with near 100% success rates will be happy to assist you.