Employers may be forgiven for thinking the deck is stacked against them these days when trying to hire H-1B foreign workers. Stories in the news abound of aggressive requests for evidence and denials, new obstacles and bans, and other draconian steps. While H-1B denials have quadrupled in recent years and all of these issues constitute real and ongoing threats to the foreign workforce in the United States, and consequently to employers trying to fill such key positions with qualified people, what may be less well-known is that in many cases, employers are successfully beating U.S. Citizenship and Immigration Services (USCIS) in federal court.

Recent research by Miller Mayer, LLP, found that out of fifty-two cases filed over the past two years, thirty-two involved H-1B denials based on an alleged failure to establish that the position was a “specialty occupation.” Software engineer and data analyst positions were the most common positions among the thirty-two cases in this category.

This blog summarizes a few recent key cases, followed by resources that include additional cases and strategies for employers.

‘Specialty occupation’ requirements misinterpreted, misapplied. In several recent rulings, courts ruled against USCIS, which had concluded that the employers had failed to establish that a position qualified as a “specialty occupation.” Among other things, a judge in one of these cases noted that regulations do not say that a degree must always be required for a specialty occupation position, yet the agency appeared to have substituted the word “always” for the word “normally.” “This is a misinterpretation and misapplication of the law,” the judge said.

Kill the golden goose? Not so fast. A lawsuit filed in April 2019 alleges that through a variety of policies and practices, including H-1B adjudication delays, increased processing times, and the increasing number of requests for evidence, H-1B denials for IT workers are skyrocketing and USCIS is “trying to end the information technology consulting…business model.” The U.S. District Court for the District of Columbia invalidated key aspects of those policies on March 10, 2020. Among other things, the court found that the current USCIS interpretation of the employer-employee relationship requirement was “inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.” The court also noted that USCIS had begun requiring an “itinerary” detailing every activity an H-1B worker was to perform for all three future years and granting H-1B petitions for less than three years without explanation, which was a change from decades of practice. The court found that USCIS must provide a legitimate reason for any decision to deny, in whole or in part, each petition for an H-1B visa.

LexisNexis H-1B denial reversed. In August 2019, the U.S. District Court for the District of Columbia granted summary judgment for the plaintiffs and denied defendants’ motion to dismiss an H-1B case in which USCIS denied LexisNexis’s petition for a data analyst on the basis of the position not being a specialty occupation. Among other things, the court found that the position was “a distinct occupation which required a specialized course of study” as supported by a “mountain of evidence” that “more than meets the preponderance of the evidence standard.” The court concluded that USCIS had “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the data analyst.

New class action to watch. On April 16, 2020, several groups and law firms filed a nationwide class action lawsuit challenging USCIS’ pattern and practice of denying H-1B nonimmigrant employment-based petitions for market research analysts. The complaint hinges on USCIS’ denials of at least 66 market research analyst H-1B petitions over the past three years, and six petitions in the first two months of 2020, all denied because of the agency’s interpretation that the Occupational Outlook Handbook does not establish that the position of market research analyst qualifies as a specialty occupation. The complaint estimates that hundreds of future cases could be at stake, noting that there have been at least 40 such denials since January 2019.

The bottom line: consider filing a lawsuit when an H-1B denial seems arbitrary and unfair. For advice in specific situations, including potential H-1B and other immigration litigation, contact your Miller Mayer attorney.

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