Court Upholds H-1B Visa Denial: “Incoherence Does Not Equate to Complexity”

The H-1B visa is one of the most sought-after temporary work visas in the United States. Under assault by President Trump, this coveted visa type is reserved for jobs which are “speciality occupations” requiring the theoretical and practical application of a body of highly specialized knowledge.

Such knowledge must be gained by completing a bachelor’s or higher degree in a specific speciality (or its equivalent) as a minimum for entry into the occupation. Examples of specific specialities are accounting, engineering, and computer science, among others.

Government regulations prescribe four alternative criteria by which an employer can prove that a job is a speciality occupation. The last of these is the so-called “complexity of duties” criterion whereby the employer proves the specific duties are so specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

While there are four separate criteria delineated in the regulations, in practice most cases turn upon whether or not the employer has demonstrated the “complexity of duties” for the position.

On July 15, 2019, in Sagarwala v. Cissna, the U.S. District Court for the District of Columbia upheld an H-1B petition denial by U.S. Citizenship and Immigration Services (USCIS) for a QA Analyst. See https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv2860-29. A key takeaway from the ruling is that, when describing H-1B job duties, “Incoherence does not equate to complexity” in the words of the Court.

To prove “complexity of duties”, the employer-provided a one-page, bullet-point list of job duties. This is a common tactic. But the Court decided that some of the listed duties were quite vague (“Responsible for the set of tasks and techniques used to work as a liaison among stakeholders in order to understand the structure, policies, and operations of an organization”). Other listed duties, though less vague, were not self-evidently complex, like “Validating data retrieved from the DB.” Finally, in the words of the court: 

“A few duties might well be more complex, but a layperson is unlikely to understand what they mean from [the employer’s] jargon-heavy explanations. Take, for example, the responsibility to “Test[] API Web services using Rest Assured using JSON format with JAVA and POSTMAN,” or the responsibility to “Work[] on Selenium-Grid to do the multi-browser.” It was [the employer’s] burden to explain what these duties actually entail. Incoherence does not equate to complexity.”

Before President Trump, job descriptions like this often sufficed to prove the “complexity of duties” criterion. Under the Trump administration, no more.

Although U.S. immigration lawyers are not often trained in engineering, computer science, or other technical specialities, it is nevertheless incumbent upon the attorney to dig down into and understand each client’s business, exactly what the H-1B employee will be doing in the context of that business, and why the employee’s duties are so specialized and complex as to satisfy the “complexity of duties” criterion. The attorney should be able to explain the complexity of the job to USCIS in terms the agency is likely to understand and explain why the job must be differentiated from other positions in the same occupational category that do not require such knowledge.

Given the wide variety of employers, jobs and duties that exist in today’s technology-dependent businesses and industries, this can be hard, time-consuming work. But merely throwing out a long list of arcane-sounding duties, even when coupled with other evidence, will not suffice. If the underlying duties of the position remain vague, unclear, or truncated, USCIS will not approve the petition, nor will a court overturn the agency’s denial. Incoherence does not equate to complexity.

Please note: Mr Slowik will be attending the 2019 IR Global Annual Conference in Amsterdam. He has over 30 years of experience in U.S. immigration law. He is available to answer questions about the H-1B visa and all other types of visas to the U.S.