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Federal Judges Find That US Citizenship and Immigration Services Regularly Illegally Denying H-1B Petitions in Series of Four Decisions

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After a federal judge made a significant decision limiting the ability for US Citizenship and Immigration Services (USCIS) to deny H-1B petitions by claiming that a position does not qualify as a specialty occupation, in three new court cases decided between March and April, federal judges once again decided that the agency unlawfully denied each one of the petitions for foreign born professionals, (once again) by improperly defining a specialty occupation. These four decisions, in combination, should provide some assurances to both employers and potential visa holders.

USCIS Instructed Adjudicators To Adopt Illegal Definition Of Specialty Occupation

It was recently revealed, through Freedom of Information Act (FOIA) documents, that denial rates for H-1B petitions have skyrocketed under the Trump administration because USCIS specifically instructed adjudicators to adopt a very narrow interpretation of what qualifies as a “specialty occupation.” Specifically, in a memo that was circulated, the agency indicated that because not every entry level computer programmer position required a bachelor’s degree, it would not qualify as a specialty occupation, and that this analysis could be used to make this same argument for any position.

Judges Find That H-1B Specialty Occupations Do Not Require Particular Degrees

However, a number of federal judges rejected the argument, finding that simply because some employers hire analysts with general or associate degrees does not prove that a bachelor’s or specialty degree is not normally required, and added that the regulatory criteria is not written such that a particular degree is always required. In fact, according to one federal judge, even if a particular type of degree is not required, if it is common for the profession, that supports the contention that it is a specialty occupation. The judge found that, in each decision, the agency had essentially substituted the word always for the word normally in the regulation, thus misinterpreting and misapplying the law to dictate that a particular degree must always be required in order for a position to qualify as a specialty occupation. Similarly, judges have also found that USCIS administrative appeals offices have arbitrarily and capriciously upheld denials of H-1B petitions, noting that, in years prior, the agency had approved the exact same position.

What these decisions will hopefully do is streamline the H-1B process; in particular, the specialty occupation adjudication, such that the agency will move on from finding that a worker qualifies because they have a degree in a particular specialty, to determining beneficiary qualifications; this second step of which the agency has rarely reached under this current administration.

Contact an Experienced Immigration Attorney If You Need Assistance with H-1B Petitions or Other Immigration Legal Issues

If you are an employer or a potential visa holder with concerns that your H-1B petition has been illegally denied, or you have any other immigration legal questions or concerns, contact North Carolina immigration attorneys at Hauter Law Firm, PC for a free consultation.

Resources:

nfap.com/wp-content/uploads/2020/04/Memorandum-Order-India-House-Inc.-v.-DHS-3.26.2020.pdf

aila.org/File/Related/19091601w.pdf

forbes.com/sites/stuartanderson/2020/04/08/judges-slap-down-uscis-again-on-h-1b-visas/#4900076f2874

https://www.hauterlaw.com/u-s-supreme-court-sides-with-immigrants-rights-to-challenge-deportation-orders-in-lower-courts/

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