H-1B Adjudication Trends for 2020
I follow the H-1B decisions published by the AAO every month and I summarize these on a regular basis on my website blog. This Legal Guide gleans some of the more important adjudicatory trends affecting the H-1B petition process in the hope that some common (and often fatal) mistakes are avoided.
Chances of Success for an H-1B Appeal to the AAOThe AAO issued about 952 decisions for H-1B appeals and motions in 2020. 216 appeals and motions were sustained or approved (23%). 98 appeals and motions were dismissed as moot (10%). 191 appeals and motions were remanded to USCIS for additional adjudication (20%). 447 appeals and motions were denied (47%). Excluding the filings dismissed as moot and including the cases that were remanded as they will likely be denied by USCIS, the denial rate for filings with the AAO for the year 2020 is 75%. The AAO posted its processing times in January 2021, with only a quarter of the H-1B appeals being adjudicated in the first six months after submission.
General Observations for filing H-1B Petitions and Appeals“A large focus of the H-1B program requirements [is] based on what a particular position requires;” job requirements must not be ambiguous in any way. In Re: 8428871 (AAO April 28, 2020). When crafting the job description, avoid describing duties in a circular way that focuses on an outcome or result, rather than the process undertaken to produce such an outcome. In Re: 10446098 (AAO Aug. 19, 2020). “Nebulous terms such as ‘participating in’ and ‘contributing to’ do not convey the Beneficiary's level of involvement with the task nor what the Beneficiary’s activities will be in completing the duty.” In Re: 8911329 (AAO Aug. 27, 2020). Be mindful of listing methodologies as independent duties when they actually cut across every duty; the AAO uses the example of “managing one’s time” as a methodology that applies to every duty and “is meaningless when broken out into an individual duty unto itself.” In Re: 10546859 (AAO Aug. 27, 2020). -----
Positions that require a general degree like business administration are not H-1B caliber and will be denied. This has been the accepted interpretation of the law since 1988 (see Matter of Michael Hertz) and remains so today. See In Re: 8429212 (AAO March 27, 2020). The AAO cites to Royal Siam and Irish Help at Home to support this finding. In one appeal where the job requirement included a bachelor’s degree in business administration, the AAO held that “[f]or this reason alone, the proffered position is not a specialty occupation, and this petition cannot be approved.” In Re: 8418912 (AAO [date omitted]. -----
Changes to the initial filing, including adjustments or concentrations of job duties and requirements at the RFE and appeal stage are frequently being treated as internal inconsistencies by the AAO. In Re: 8428871 (AAO April 28, 2020). -----
Any position title that includes “analyst” is a red flag that may indicate a robust job description focusing on complexity and specialization is required. Operations Research Analyst, Data Analyst, Technical Analyst, Market Research Analyst, Financial Analyst, Business Analyst, Business Intelligence Analyst, Computer Systems Analyst, IT Systems Analyst, Systems Analyst, Security Analyst, Operations Analyst, and Computer Analyst would all fall into this category. -----
The AAO remains enthusiastic about second-guessing SOC classifications. See, e.g., In Re: 9845663 (AAO May 28, 2020). If time allows, a Prevailing Wage Determination could be requested from the Department of Labor. Another method of ensuring the classification is correct, especially for hybrid positions, is to simply put the question to the petitioner or beneficiary (if currently holding the position). For example, if there are three potentially competing SOC codes, a practitioner could remove the title and copy the duties, then ask which set of duties most closely reflect the position. This will make defending the classification much easier at the RFE or appeal stage.
First Regulatory Criteria for Specialty OccupationsIn an appeal denying an H-1B petition for a Public Relations Specialist, the AAO cited the broad range of degrees listed for the occupation by the OOH include public relations, journalism, communications, English, or business; the petitioner attempted to focus the knowledge from these various degrees into “extensive communications and writing/editing oriented courses, focused on the development of substantial communication...critical reading, analytical thinking, and persuasive/creative writing skills.” However, the AAO held that the description of the knowledge gained was so vaguely broad as to encompass many more degree fields like law, psychology, and education. In Re: 9922268 (AAO Nov. 20, 2020). In preparing the H-1B position description, practitioners may strengthen their petitions by pulling degree/curriculum information from reputable universities to better define the skills and knowledge learned in a specific degree field.
Second Regulatory Criteria for Specialty OccupationsSome companies can get statements from contacts in the industry to help support a typical hiring standard. These letters should be sworn statements, but even more important they should be supported with evidence or be very detailed in justifying the assertions made. If able to procure one of these letters, make sure the letter states, and supports with evidence, the similarity of the business to the petitioner, hiring practices, and reasoning for the existence of an industry standard. In Re: 5446006 (AAO March 5, 2020). Also, be wary of statements made by employees of companies affiliated with the petitioner as the author “is not a disinterested party offering an objective industry opinion.” In Re: 8909703 (AAO June 17, 2020). -----
Linkedin profiles/postings may have probative value but will “not carry the same evidentiary weight as actual job postings, publications, or letters from similar organizations in the same industry.” Consequently, it may be best to use Linkedin profiles as a way of supporting the job postings and other evidence rather than relying on it as a standalone piece of evidence. These profiles can be wonderfully effective in supporting the hiring practices of the petitioner or another company, the OOH’s list of typical degrees held for the occupation, and the career guide resources often used in the fourth prong. Linkedin allows you to narrow a search for a position by industry, so it should be easy to identify profiles that can actually apply to the petition or at least have some claim to relevance (i.e., staffing agencies); most companies have their own Linkedin profile page that includes the industry and size that can be used to support the selections. Not all profiles are created equally – some are long and descriptive, others are practically blank. Be mindful of detrimental information on a profile, like someone who started working in the occupation before graduating. In Re: 9922268 (AAO Nov. 20, 2020). -----
It is quite common for practitioners and employers to expand and support the complexity of the job description by listing the Beneficiary’s completed coursework and knowledge next to each individual duty. This approach is incorrect. “Simply providing a long list of the Beneficiary’s coursework, or courses available in a degree program, does not sufficiently develop relative specialization, complexity, or uniqueness of the particular position.” In Re: 9113278 (AAO Nov. 25, 2020). The job description does not describe what knowledge the Beneficiary possesses but what knowledge is required for the position. For the job description, instead of simply listing relevant classes the Beneficiary took, look up those course descriptions in the online course catalog for the skills and knowledge being taught in those classes, then add those skills and knowledge to the job duty instead of a course name. For example, if a job duty requires calculating a project’s Offer Price and Cash on Cash Return, then the skills/knowledge required is Free Cash Flow Analysis. That skill should be listed as required for the job duty; an Advanced Corporate Finance Theory and Practice course reflects the Beneficiary's qualifications.
Third Regulatory Criteria for Specialty OccupationsThe third prong in the H-1B framework, the petitioner’s hiring practices, is arguably the weakest prong upon which to base eligibility. See Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000). In establishing this criterion, keep in mind that the presence of (former) employees with similar job titles does not prove their individual job duties. Evidence such as org charts, payroll, Linkedin profiles, resumes, and copies of degrees are commonly submitted. But USCIS and the AAO can still logically conclude that these documents lack probative value in determining whether the positions are the same. See In Re: 9683693, pg. 12 (AAO Sep. 28, 2020); In Re: 8758513, pg. 4 (AAO Sep. 30, 2020). Consider whether the employee Linkedin profiles contain a job description that reflects a similar position, or if the petitioner can add a few sentences in the support letter describing the similarity of these other employees. -----
In the case In Re: 7974508 (AAO March 27, 2020), the AAO denied the petition despite evidence of 380 past and present employees in the same position because the petitioner did “not include the detailed duties of the 380 positions within the context of any specific projects, contracts, or clients.”
Fourth Regulatory Criteria for Specialty OccupationsThe fourth regulatory criterion is separate and distinct from the second criterion. By combining the two in an RFE response or legal brief, a practitioner can deprive a petitioner from receiving full consideration under each separate regulation. I have regularly treated the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4) as a chance to make a totality of the evidence argument instead of simply referencing the arguments made under the second half of (A)(2). As per the AAO: “Our evaluation of the overall weight of the evidentiary record leads us to conclude that this case favors sustaining the appeal under the criterion found at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).” In Re: 9920136 (AAO July 29, 2020), see also In Re: 9920136 (AAO July 29, 2020).
Using Expert Letters in H-1B PetitionsWhen obtaining expert opinion letters from professional providers, try to get them to break away from their template. Expert opinions may be dismissed for casually citing to the Handbook and O*Net for support when those publications invited a range of degrees (In Re: 7052397 (AAO Feb. 6, 2020) and failing to include a copy of the works cited by the expert (In Re: 8793211 (AAO Feb. 7, 2020)). It is easy to discern a standard, boilerplate template used with “conclusory findings” and a “lack of cogent analysis” simply to “confirm a preconceived notion as to the required degrees.” In Re: 8493802 (AAO April 28, 2020). If an expert letter is used for a computer-related position, evaluators should take note that the 2013 Curriculum Guidelines for Undergraduate Programs in Computer Science, published by the Association for Computing Machinery, is an outdated document. In Re: 8420463 (AAO March 27, 2020). -----
If obtaining an expert letter from a professor, consider that individual’s publications and employment history. If research in the educational requirements for the profession, or employment as a recruiter for the profession, is absent from their resume, then these professor’s opinions on the requirements for the proffered position will lack probative value. In Re: 9097290 (AAO May 19, 2020). In these instances, focus on the complexity of the duties may be more appropriate. Some professors will have publications explaining complex issues within a profession and, if related to the job duties or technologies used, these publications could be referenced by the professor as support for their conclusions. Additionally, expert letters should focus on an “established curriculum” rather than specific courses. Id.
Appealing to the AAOCountless AAO decisions include a variation of the following: the petitioner cited to [insert common case name] for the proposition that [enter common dicta]. E.g., In Re: 9436831 (AAO May 29, 2020). In an appeal, identifying supporting cases require a full analysis of the rule, facts of the case, and outcome. A simple citation as described by the AAO is suitable only as a footnote for additional support, not as an argument in the body of the appeal. Practitioners should read, in full, Residential Finance, Tapis Int’l, Raj & Co., etc. to see if the facts of these cases truly support the facts in your case before citing them. The reasoning in RELX v. Baran has been rejected by the AAO; if a citation to RELX is warranted, include a legal analysis as to why the court was correct in its analysis. -----
If you are going to appeal an adverse decision, make sure that every reason for the denial is rebutted in the appeal form or brief. If one of the reasons for the denial is left unchallenged, the AAO will be forced to deny the appeal. In Re: 10373694 (AAO Aug. 19, 2020).