In the current competitive 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 of many organizations. They play a key role in helping companies to understand the market and their target customers better. Gathering and analyzing relevant data, they 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 and the demand for Market Research Analysts has been growing over the years, U.S. employers hiring foreign national professionals for the position of Market Research Analysts pursuant to the H1B visa classification generally face an arduous task in establishing and proving that the proposed employment of the foreign national professional as a Market Research Analyst satisfies the requirements stipulated for the H1B. USCIS often denies H1B cases for certain occupations observing that they do not fall under the category of specialty occupation, and Market Research Analyst is one among such occupations.
H1B petitions for Market Research Analysts often generate Requests For Evidence (RFEs) and in many cases, results in the ultimate denial of these petitions. This is especially true for small to mid-sized businesses. While H1B for Market Research Analysts for larger or clearly expanding companies fare much better, there is still a great amount of resistance from USCIS. On March 12, 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 H1B status to the beneficiary as a Market Research Analyst [Residential Finance Corporation vs. USCIS]. For the benefit of our readers, we present in this article a brief synopsis of the key points laid out by the court in its order, which will be helpful in better understanding the scope of the H1B for Market Research Analysts.
Brief Background of The Case:
The plaintiff/petitioner, a mortgage lender, filed an H1B visa petition with the 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 H1B 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.
Key Points In The Case:
After concluding that it had jurisdiction to hear and decide the subject matter of the suit, the court proceeded to address the merits of the case (USCIS had tried to argue that the federal courts lacked “jurisdiction” or the authority to review a USCIS decision regarding H-1B. The District Court disagreed). Noting that the plaintiff was entitled to relief if the denial of the petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the court observed that the issue before it was whether USCIS was incorrect in concluding that the case did not involve a specialty occupation.
According to the court’s explanation, USCIS’s reason for denying the H1B petition was that the specific position Market Research Analyst as set forth in the petition was not truly a specialty occupation i.e. a baccalaureate or higher degree in a specific academic discipline was not necessary to be a Market Research Analyst. According to the decision, one of USCIS’s sole basis for denying the petition 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 a 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.
Interestingly, the Court points out that USCIS states as a “caveat” that their decision does not necessarily mean that every Market Research Analyst does not qualify as long as the petitioner shows 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.”
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.”
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,
the court found that the position in the petition as Market Research Analyst did meet the definition of a specialty occupation.
Considering the record before it, the court observed that USCIS failed to examine all of the correct relevant data, failed to consider the submitted evidence and to articulate an untainted, satisfactory explanation for the denial that rationally connected the facts to the decision, and held that the denial of the petition was arbitrary, capricious, and an abuse of discretion.
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 H1B if documented evidence establishes, along with establishing other requirements that are necessary for approval of an H1B, 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. However, employers desiring to hire foreign national professionals as Market Research Analysts and employ them under an H1B visa must take care to ensure that the job requirements and the job duties are specific and satisfy the conditions that are necessary for successful approval of an H1B petition. Thorough documentation clearly establishing the need and requirement for a bachelor’s degree for the proffered position and evidencing that the beneficiary possess such relevant degree, is highly necessary in such cases to improve the chances of approval of H1B petitions. Considering the additional challenges that an H1B petition for Market Research Analysts presents, it is advisable that employers speak with an experienced immigration professional, review their situation, and analyze the suitability of H1B in their situation before making the final decision.
Contact VisaPro if you have any queries about the H1B visa or to receive assistance with your H1B filing strategies for next fiscal year. As April 1st is upon us, it is advisable that you contact us as soon as possible. Our experienced attorneys will be happy to assist you.
The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com/
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