US Court Upholds H-1B Denial Because “Financial and Operations Analyst” Did Not Qualify As a Specialty Occupation

90357_accounting_calculator_1.jpgThe position of Financial and Operations Analyst did not qualify as a specialty occupation, according to a recent decision by the US District Court for the District of Minnesota, Palace Wine and Spirits v. USCIS, Civil No. 11-402 (DWF/JJK) May 25, 2012. Plaintiff, Palace Wine and Spirits, filed an H-1B petition to employ a foreign national in the job position of Financial and Operations Analyst. The petition was denied by the USCIS on the basis that the position did not qualify as a specialty occupation.

The job duties of the position were to research, develop, and interpret information that assists management with policy formulation, and other managerial functions, including evaluation of accounting operations that required the use of analytical techniques, and providing analysis and information to the President and CFO about business acquisition interests, and will oversee and manage projects as assigned by the Chief Financial Manager.

A position must be a specialty occupation to be eligible for an H-1B visa. A position must meet one of the following four criteria to qualify as a specialty occupation, according to 8 C.F.R. ยง 214.2(h)(4)(iii)(a):

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; or
(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; or
(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.

The Court agreed with the USCIS that the plaintiff failed to establish that the position satisfies any of these four criteria.

First, the USCIS held that the plaintiff lacked substantive evidence of an industry-wide requirement of at least a bachelor’s degree in a specific specialty for similar positions.

Second, the USCIS held that the Plaintiff there was insufficient information to distinguish the position as unique from or more complex than similar positions that can be performed without a bachelor’s degree.

Third, the USCIS held that the Plaintiff did not demonstrate that it normally requires at least a bachelor’s degree in a specific specialty for the position.

Finally, the USCIS held that the plaintiff failed to present any evidence to show that the skills utilized are so specialized and complex that knowledge required to perform the duties of the position is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.