CASE: H-1B Visa Petition (Change of Employer)
PETITIONER: E-Commerce Merchandiser in Dallas, TX
BENEFICIARY: Korean Marketing Analyst in Seoul, South Korea
Our client is an E-Commerce Merchandising company located in Dallas, Texas. They contacted our office in late September to seek legal assistance from our office for their foreign employee. The beneficiary obtained her Bachelor’s degree in Business Administration in United States. The proffered position for the Beneficiary is a Marketing Analyst which we argued qualifies as a specialty occupation.
The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry, but she tried to change her employer and filed an H-1B transfer in February 2014. This H-1B transfer was denied, so she filed a Motion to Reopen in April 2014 which was subsequently denied by the USCIS in June 2014.
After that, she went back to South Korea and retained our firm to do an H-1B transfer. We prepared the application and included an H-1B recapture argument, to get back the remaining period of H-1B time from her termination of the employment with her previous employer.
Once retained, our office prepared and filed the H-1B visa petition with various supporting documents on September 26, 2014 via premium processing service. The USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on October 6, 2014.
The USCIS argued that the proffered “Marketing Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”.
We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.
In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations. We provided evidence that the position of Marketing Analyst is a common position required by similarly sized E-Commerce Merchandising companies. Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Marketing Analyst. Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to re-capture arguments were submitted.