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IMMIGRATION NOVEMBER 10, 2023 | The Indian Eye 39

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Therefore, the phrase “or its equivalent” gram should equip the worker to per- and normally required, per regulatory ents of the petitioner would certainly
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actually broadens the requirement for a form the technical duties of a specialty criteria. ‘Typically’ and ‘normally’ are not want to be viewed as a co-employ-
bachelor’s degree is a specific specialty occupation whether it is for the position synonyms.”) er and incur potential liability from a
to encompass “not only skill, knowledge, of Operations Research Analyst, Soft- Finally, if the worker will be claim by the H-1B worker.
work experience, or training ….. but also ware Developer or Computer Systems “staffed” to a third party client site, the It must be acknowledged, that the
various combinations of academic and Analyst. The USCIS backed off after client rather than the employer would educational requirements of the third
experience based training.” See Tapis, the court in Inspectionxpert v. USCIS need to establish that it would normally party would only be taken into accounts
supra. Thus, if an occupation requires a criticized the government for objecting require a US bachelor’s degree is a di- would only trigger if the H-1B worker is
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generalized degree, but specialized ex- to engineering degrees but the proposed rectly related specific specialty. It would “staffed” to the third party as opposed
perience or training, it should still quali- regulation will ensure that the engineer- be difficult for the sponsoring employer to providing services to the third party.
fy as a specialty occupation. ing degree suffers the same fate as the to obtain such a justification from a cli- Defensor v. Meissner involved
The proposed rule seems to latch generalized business degree. ent, and this too could result in RFEs a staffing agency for nurses that filed
onto old, outdated notions of a business Still, the DHS must be credited for (request for evidence) bonanza and po- the H-1B petitions and contracted the
degree being too generalized to qualify clarifying in the proposed regulation tential denials. nurses to hospitals. Would the USCIS
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for H-1B classification. If a lawyer can that if the bachelor’s degree in a direct- The proposed regulations codify understand the distinction between
qualify for H-1B classification with a JD ly related specific specialty is normally the 5th Circuit’s holding in Defensor the nurse in Defensor v. Meissner and
degree or its equivalent to take up a po- the minimum requirement, “normally v Meissner but in that case the Court a software engineer who is providing
sition as a tax associate or corporate as- does not mean always.” The proposed treated the client as a co-employer. The services to the client rather than being
sociate, why does the marketing analyst rule will take into account other syn- H-1B framework contemplates only the staffed to the client? This distinction
need a business degree with a specializa- onyms like “mostly” or “typically.” See petitioner as the employer. The client may be lost on a USCIS examiner, and
tion in marketing rather than be able to Innova v. Baran (“There is no daylight does not supervise the H-1B worker or this will result in an RFE bonanza.
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qualify with a broad MBA degree? Simi- between typically needed, per OOH, evaluate their job performance. The cli-
larly, the preamble to the rule also states _________________________________________________________________________________________________________
that “a petition with a requirement of Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
any engineering degree in any field of
engineering for a position of software Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
developer would generally not satisfy mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
the statutory requirement” as the peti- Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
tioner may not be able demonstrate how Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
the different fields of engineering would of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
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qualify the H-1B worker to perform the
duties of software developer. New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
Until the Trump administration, it is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
was presumed that an occupation that received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
requires an engineering degree should Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
qualify for H-1B classification. Although also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
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there are many types of engineering
disciplines, the basic quantitative skills lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
gained in an engineering degree pro- Chambers Global 2019 in immigration law, among other rankings.

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