The U.S. Court of Appeals for the 9^th Circuit recently heard the case of David Parsons & Associates INC v. DHS.  Plaintiff filed suit on grounds that the H-1B visa petition was denied as a result of abuse of organizational power.  The court determined that the government agencies involved in the decision making process did not abuse their discretion in denying plaintiff visa petition under the first three criteria determined in 8 C.F.R. § 214.2(h) (4) (iii) (A).  The court moved to remand the case to the agency to adequately determine if plaintiff met the fourth criteria of the statute in question.  

Plaintiff David Parsons & Associates, a real estate appraisal company, filed a Forum I-129 Petition for Nonimmigrant Worker with the Bureau of Citizenship and Immigration Services (BCIS) on November 25, 2002.  The filing was intended to change the status of employee John Parsons, a Canadian citizen, from a TN nonimmigrant employee to a commercial real estate appraiser in H-1B nonimmigrant status.  The intended beneficiary lives in the U.S. and has been employed by plaintiff as a consultant since June 2002.  He holds a Bachelor of Business Studies from Massey University in New Zealand .  In addition, plaintiff submitted a form I-94, as well as opinions from two people with expertise in the real estate industry on beneficiary’s behalf.   

On December 3, 2002, the USCIS determined that the aforementioned documents were insufficient to meet plaintiff’s statutory burden, and requested that petitioner submit additional evidence showing that the intended beneficiary qualifies as having a specialty occupation within the meaning of the visa.  Plaintiff submitted additional documents, including a letter from the Washington State Department of Licensing, but USCIS denied plaintiff’s petition a second time, finding that plaintiff had failed to establish the offered position qualifies as a specialty occupation.  USCIS determined that the plaintiff failed to prove that the offered position is so specialized and complex that a baccalaureate degree is necessary.   

On January 30, 2003, plaintiff filed an appeal with the AAO with the contention that the real estate appraiser position is so complex that it could only be performed by someone with a degree in business or the equivalent.  On December 30, 2003, the AAO affirmed the decision of the USCIS, and found that the plaintiff had failed to establish that the commercial real estate appraiser met nay of the requirements for classifying the position as a specialty occupation under the agency regulations. Under § 8 C.F.R. § 214.2(h)(4)(ii).  In response, plaintiff filed the current action, seeking review of the BCIS’s denial of its H-1B petition; Defendant has moved to dismiss.  

Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the four criteria:  

1)     A baccalaureate or higher degree or its equivalent; normally the minimum requirement;

2)     Employer shows that the particular position is of such complexity that it can only be performed by an individual with a degree;

3)     The employer normally requires a degree for the position; or

4)     The nature of the specific duties is so specialized that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  

Based on its findings, USCIS determined that “petitioner has not shown that it has, in the past, required the services of individuals with baccalaureate or higher degrees in a specialized area for the offered position” nor did “petitioner present any documentary evidence that business similar to the petitioner…require the services of individuals with specialized degrees in parallel positions."  

Since the court has determined that USCIS did not abuse its power, the case was remanded back to the agency, so it can adequately establish its reasons for denying the petition, and request further evidence that details the additional evidence needed to satisfy the fourth requirement.

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