H-1B Specialty Occupation With a Third-Party Worksite
An employer files an H-1B for a market research analyst with a bachelor's degree in communications. The employee will be placed at a client site 40 miles from the employer's office, where the client will supervise daily work. The employer charges the client a flat fee and pays the employee a salary of $62,000; the prevailing wage for the position in that county is $78,500. The employer's LCA lists the employer's own office as the worksite. The petition is filed in March for an October 1 start date. The employer has 12 employees and no prior H-1B filings. The employee's degree includes two statistics courses and one research methods course.
1. Identify the LCA and worksite compliance problems and their consequences.
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Worksite mismatch. The LCA must list every worksite where the H-1B worker will perform services. Listing only the employer's office when the employee will actually work 40 miles away at a client site is a material misrepresentation on the LCA. The employer must file a new or amended LCA covering the client location and post notice there (or provide electronic notice) before the employee begins work at that site.
Wage issue. The offered wage of $62,000 is below the $78,500 prevailing wage for that county. The employer must pay the higher of the actual wage or the prevailing wage. Underpaying is a violation of the LCA attestations and exposes the employer to back-wage liability, civil penalties, and a possible debarment. The employer must raise the salary or document why the prevailing wage determination is wrong (e.g., a different SOC code).
Third-party placement. When the employee works at a client site and the client supervises daily work, USCIS applies the Defensor and Simeio line of reasoning: the petitioner must show it has an employer-employee relationship, the right to control, and a bona fide specialty occupation position. A flat fee paid by the client can look like a staffing arrangement. The employer should document its supervisory role, performance reviews, and the right to reassign.
Consequence. An LCA that omits the worksite and underpays the worker can support a finding that the petition was filed with false attestations, leading to denial and potential fraud referral. The employer should withdraw and refile with a corrected LCA before the March filing.
2. Assess whether the position qualifies as a specialty occupation and whether the degree qualifies.
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Specialty occupation test. The position must require theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in a specific specialty (or its equivalent). A market research analyst role can qualify, but only if the duties are genuinely specialized - data analysis, survey methodology, statistical modeling - rather than general sales or marketing support.
Degree match. The communications degree is the weak point. USCIS evaluates whether the degree is in a field directly related to the position. A communications degree with two statistics courses and one research methods course is not a degree in market research, statistics, or a quantitative social science. Counsel should obtain an expert opinion letter addressing whether the coursework and the position's duties are related, and consider whether a combination of education and experience qualifies under 8 C.F.R. §214.2(h)(4)(iii)(D).
Alternative evidence. The employer can show that the industry standard requires a specialized degree, that the duties are complex, that the employer normally requires a degree for the role, or that the nature of the specific duties is so specialized that the knowledge is associated with a bachelor's degree. The employer should revise the job description to emphasize statistical analysis and research design, and should document that comparable positions in the field require a quantitative degree.
Bottom line. As filed, the petition is vulnerable on both the specialty occupation and the degree-match grounds. The employer should strengthen the record or consider a different SOC code before filing.