U.S. Citizenship and Immigration Services (USCIS) has been denying many H-1B petitions by misinterpreting the law. On April 16, 2020, the American Immigration Council and partners filed a nationwide class action lawsuit challenging the agency’s pattern of unlawfully denying H-1B petitions for market research analysts. The plaintiffs—who are suing on behalf of themselves and other similarly-situated employers—are two U.S. businesses whose H-1B petitions for market research analysts were denied by USCIS.
The H-1B nonimmigrant visa classification allows highly educated noncitizens to work for U.S. employers in specialty occupations. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge for which at least a bachelor’s degree in a specific specialty (or its equivalent) is required at the entry-level.
By regulation, a U.S. employer can establish that a position is within a specialty occupation through any one of several tests, which USCIS applies within the framework of the law’s definition of specialty occupation.
Under the first test, the employer petitioner must show that a bachelor’s or higher degree in a specific specialty is normally required for the occupation. With that showing, USCIS must find that the occupation is a specialty occupation.
The lawsuit claims USCIS unlawfully denies H-1B petitions for market research analysts through several misinterpretations:
- The agency misinterprets the term “specific specialty” in the law that defines “specialty occupation.”
- USCIS misinterprets the word “normally” in the first regulatory test.
- In applying the first regulatory test, USCIS misinterprets the Occupational Outlook Handbook (OOH) entry for market research analysts. USCIS relies on this Department of Labor publication when an occupation is among the hundreds in the U.S. job market that the OOH profiles.
Based on available administrative decisions, the complaint estimates that at least 40 U.S. businesses had H-1B petitions for market research analysts denied since January 2019. These are likely only a small fraction of the denials. If USCIS continues at this rate, there likely would be hundreds more denials on the same basis in the future.
The American Immigration Council filed the nationwide class action lawsuit. Co-counsel are the American Immigration Lawyers Association, and the law firms Joseph & Hall, P.C., Kuck Baxter Immigration LLC, and Van Der Hout, LLP.
USCIS must be held accountable and apply the law correctly when deciding petitions for visa classifications. H-1B workers are part of America’s economy and together with U.S. workers they will continue to support our country in a variety of sectors.
FILED UNDER: H-1B
