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Why H-1B Employers Should Challenge H-1B Denials in Court

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There can be no doubt that the Trump era has dealt a devastating blow to immigration, but perhaps the most affected individuals have been H-1B visa hopefuls and their employers.

Early on during the President’s administration, the President advocated for and implemented some of the most disastrous immigration policies ever seen—particularly because of the restrictive effect these polices have had in drastically reducing visa approvals for temporary workers.

Across the board, our office witnessed a staggering increase in the issuance of requests for evidence, and a high rate of denials for H-1B visa worker petitions, despite a highly qualified applicant base.

While these petitions were easily approved in past administrations, the reality began to set in that things would be much different under President Trump. Data has shown that from fiscal year 2015 to fiscal year 2019, H-1B denial rates for new H-1B petitions increased drastically from 6 percent to 21 percent., while denial rates for H-1B visa extensions increased to 12 percent in fiscal year 2019.

Where did it all begin?

USCIS began to aggressively limit H-1B visa approvals following the passage of the President’s executive order “Buy American and Hire American” signed on April 18, 2017.

With this order, the President single-handedly targeted one of the most sought-after visa programs in the United States—the H-1B visa program for highly-skilled temporary foreign workers. The order specifically directed the Attorney General and Secretaries of State, Labor, and Homeland Security to suggest reforms to ensure that H-1B visas would only be approved for the most-skilled or highest-paid workers.

While the President’s restrictive policies on immigration gained him a loyal following, they ultimately narrowed the playing field significantly for prospective H-1B workers.

Buy American and Hire American effectively gave the Department of Homeland Security—and by extension the United States Citizenship and Immigration Services—a broad range of power to develop and enforce restrictive policies limiting the issuance of H-1B visas.

Thereafter, USCIS went to work producing rule-making, policy memoranda, and implementing operational changes to carry out the President’s agenda with the goal of drastically limiting approvals for H-1B workers.

2018 Policy Memorandum

The President’s call to action ultimately resulted in the promulgation of the CIS 2018 Policy Memorandum (PM-602-0157)—a disastrous policy change that added new requirements to the H-1B visa process and changed the way that CIS adjudicated H-1B petitions. This memorandum was responsible in large part for the high rate of H-1B denials seen in recent years. Fortunately, the 2018 memorandum was recently declared unlawful and invalidated by a federal judge in the case Itserve Alliance Inc., et al., v. L. Francis Cissna, because the government failed to follow rule-making procedures when it adopted the memorandum. As a result, CIS has been forced to follow INS era policies and regulations when adjudicating H-1B petitions.

Federal Courts Create Precedent Invalidating USCIS H-1B Denials

We are happy to report that there is hope for the future of the H-1B visa program. H-1B employers have consistently been successful in challenging H-1B denials in federal court, where the petition was denied on grounds that the position was not a “specialty occupation.”

Under the Trump administration, CIS has increasingly denied H-1B petitions where the OOH occupational description for a particular position has stated that a bachelor’s degree in a particular subject is not “always” a prerequisite for entry into the position. CIS has reasoned that positions that do not “always” require a bachelor’s degree in a particular subject, cannot be specialty occupations.

Three different U.S. District Courts recently held that such an interpretation is erroneous and cannot form the basis for any H-1B denial.

Deciding Whether a Position Qualifies as a “Specialty Occupation”

CIS ultimately decides whether a position counts as a specialty occupation and the employer bears the burden of proof in establishing this fact.

Federal regulations define a “specialty occupation” as one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.

To demonstrate whether a position qualifies as a specialty occupation, the position must meet one of the following criteria (8 C.F.R. § 214.2(h)(4)(iii)(A)):

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

The Case Law

Taylor Made Software Inc. v. Kenneth T. Cuccinelli

In the recent case Taylor Made Software Inc. v. Kenneth T. Cuccinelli filed in U.S. District Court for the District of Columbia, the plaintiff sought to employ a Computer Systems Analyst who held a U.S. Master’s Degree in Computer Science. CIS denied the petition arguing that a computer systems analyst position was not a specialty occupation.

In determining that the Computer Systems Analyst position did not meet the specialty occupation criterion, USCIS relied in part on the DOL’s Occupational Outlook Handbook (OOH), which it recognized as an authoritative source on the duties and educational requirements of occupations.

Because the OOH’s occupational description for “computer systems analyst” stated that a “bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming,” CIS determined that a bachelor’s level of training in a specific specialty is not required for the Computer Systems Analyst occupation.

The judge in that case held that this interpretation was erroneous because that the OOH’s statement that a bachelor’s degree in computer or information science is common—although not always a requirement to become a Computer Systems Analyst—tends to support rather than disprove the fact that the position is a specialty occupation because a baccalaureate or higher degree in computer or information science (or its equivalent) is “normally” the minimum requirement for entry into the position, and thus qualifies the position as a specialty occupation.

In finding to the contrary, the court re-iterated that “the regulatory criterion is not whether such a degree is always required” rather whether a specialty degree is “normally” required.

Further, the court remarked that the OOH language stating that “some firms hire Computer Systems Analysts with general business or liberal arts degrees”—does not prove or even suggest that a specialty degree is not normally required for this position.

Additionally, the court pointed out that CIS failed to acknowledge the language in the OOH stating that “most Computer Systems Analysts have a bachelor’s degree in a computer-related field,” satisfying the regulatory criterion that a specialty degree is “normally” required for this position under (8 C.F.R. § 214.2(h)(4)(iii)(A)).

3Q Digital, Inc. v. USCIS

In a similar decision reached in 3Q Digital Inc. v. USCIS, the plaintiff challenged the denial of an H-1B petition filed on behalf of its worker for the position of Search Engine Marketing Account Manager. There, the beneficiary held a U.S. Bachelor’s Degree in Economics.

In that case, the federal judge found that USCIS improperly substituted the word “always” for the word “normally” in the regulation governing the criteria for H-1B petitions C.F.R. § 214.2(h)(4)(iii)(A).

In doing so the judge held that CIS acted “arbitrarily and capriciously” and ordered CIS to approve the petition.

India House Inc v. Kevin McAleenan

Finally, in the case India House Inc. v. Kevin McAleenan, filed in the U.S. District Court for the District of Rhode Island, the court reviewed the decision of the Administrative Appeals Office (AAO) upholding the denial of an extension of H-1B status to a restaurant manager with a U.S. Bachelor of Science in Hospitality Management. The beneficiary had been previously granted H-1B status in 2013 and 2016.

There, CIS denied the petition on the ground that the position of restaurant manager was not a “specialty occupation” and on their conclusion that the beneficiary’s degree in Hospitality Management was not considered a “specific degree” for the position of restaurant manager.

The judge pointed out that, “the government here offers no reason to explain how a Hospitality Management degree can be a “specific degree” one day, and not a “specific degree” the next,” and in the absence of an explanation, “… it appears plain that this degree is, indeed, specific to the duties that one with specialized knowledge in the restaurant business would have,” thus the judge found that, “the agency’s denial of [H1B] status is arbitrary and capricious.”

On that basis the judge ordered CIS to grant the petition.

Fighting an H-1B Denial 

We believe that Petitioners have a good chance of succeeding in fighting H-1B denials in federal court because federal judges have consistently held that CIS has been misinterpreting the law in favor of a more restrictive approach that is not supported by current regulations.

These new cases provide renewed optimism in our immigration system and are a necessary vehicle by which we must hold our government accountable.

If your H-1B has been denied and you are interested in exploring your options to challenge that denial, please call our office for a consultation.