Marker Research Analysts – H-1B Visa
USCIS reached a settlement agreement in the case of MadKudu Inc., et al. v. U.S., Citizenship Services, et al., No. 20-cv-2653 (N.D. Cal.). The settlement agreement provides new guidance for deciding H-1B petitions for market research analysts.
In this case, USCIS had denied plaintiffs H-1B petitions for market research analyst positions based on the determination that it was not a “specialty occupation”.
As per the terms of the settlement, USCIS agreed to issue guidance which states that
- Market research analysts positions normally requrie a bachelor’s or higher degree in a specific specialty for entry;
- A bachelor’s degree in business administration with a minor, major, concentration or specialization in market research, marketing, or research methods is not a generalized degree; and
- A market research analyst position that accepts a bachelor’s or higher degree in communications, statistics, computer and information technology, and/or social science may qualify as a specialty occupation if the petitioner is able to demonstrate that an official minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform the job duties.
What is the H-1B Visa Process?
For H-1B cases, the petitioner must first file a labor condition application (LCA), Form ETA-9035E, electronically through the DOL’s Foreign Labor Application Gateway (FLAG) system. Next, the employer files Form I-129, Petition for a Nonimmigrant Worker, an H Classification Supplement, and an H-1B Data Collection and Filing Fee Exemption Supplement.
H-1B Visa Criteria
To determine if a beneficiary is eligible for an H-1B, USCIS will look at whether the position is a specialty occupation and whether the beneficiary meets the requirements for the specialty occupation.
“Specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
- The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Furthermore, to meet the requirements of performing in a specialty occupation, the beneficiary will need:
- Full state licensure, if that is required for practice in the state;
- Completion of a U.S. bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or a related field; or
- Education, training, or experience in the specialty equivalent to the completion of such degree.
The new settlement agreement in Madkudu v USCIS will significantly help market research analysts secure H-1B status. Those whose matters have already been adjudicated can submit Form I-290B, Notice of Appeal or Motion, to request that their denied Form-129, Petition for a Nonimmigrant Worker, seeking H-1B classification for a market research analysis be reopened and adjudicated per the terms of the settlement agreement. You can read more about the H-1B process here or contact Silver Immigration to speak with an immigration lawyer.