Judges Slap Down USCIS Again On H-1B Visas
Under the Trump administration, a major reason denial rates for H-1B petitions have skyrocketed is USCIS instructed adjudicators via memo to adopt a new, narrow interpretation of what qualifies as an H-1B “specialty occupation.” The USCIS memo said, in effect, unless the Department of Labor (DOL) Occupational Outlook Handbook states that everyone who holds a particular job has a bachelor’s degree, perhaps even a bachelor’s degree in a specific specialty, USCIS adjudicators should deny the H-1B petition on the grounds the position does not qualify as a specialty occupation.
Jonathan Wasden, a partner with Wasden Banias, LLC, believes that under the law and regulation, if a degree is normal for U.S. workers in the position, then it qualifies as a specialty occupation.
We know USCIS changed its interpretation because, on September 18, 2019, the American Immigration Lawyers Association (AILA) made government documents public after settling a Freedom of Information Act (FOIA) lawsuit. A previously-unreleased USCIS memo told adjudicators that since the Department of Labor Occupational Outlook Handbook states that “. . . some employers hire workers with an associate’s degree … it suggests that entry level computer programmer positions do not necessarily require a bachelor’s degree and would not generally qualify as a position in a specialty occupation.” (Emphasis added.) The USCIS memo said this analysis could be used on any position.
Fast forward to March 31, 2020, and the opinion by U.S. District Judge Rudolph Contreras in Taylor Made Software v. Kenneth T. Cuccinelli. Judge Contreras concluded USCIS was wrong to declare that since “many computer systems analysts have liberal arts degrees and gained experience elsewhere . . . the proffered position cannot be” a specialty occupation.
In ruling against USCIS, the judge noted the DOL Occupational Outlook Handbook states that a bachelor’s degree in computer or information science is “common, although not always a requirement.” He wrote that “common” should be interpreted as “normally,” adding that even if “‘some firms, hire analysts with general business or liberal arts degrees does not prove – or even suggest – that a specialty degree is not ‘normally’ required.” He added, “Again, the regulatory criterion is not whether such a degree is always required, or whether some employers do not require it,” as USCIS claimed.
On March 31, 2020, Judge Contreras also ruled against USCIS in a similar case – Info Labs v. USCIS. As in the Taylor Made Software case, USCIS denied an employer’s H-1B petition for a computer systems analyst “on the grounds that Info Labs failed to establish that the position qualified as a ‘specialty occupation.’”
Judge Contreras wrote, “From the Court’s perspective, the Handbook’s statement that a bachelor’s degree in computer or information science is ‘common, although not always a requirement’ supports, rather than disproves, the proposition that a specialized degree or its equivalent is normally the minimum requirement. The fact that such a degree is not ‘always’ required – or that ‘some firms’ hire analysts with general business or liberal arts degrees – does not suggest a specialty degree is not ‘normally’ required.”
The judge cited the March 6, 2020, decision in 3Q Digital, Inc. v. USCIS: “The regulation does not say that a degree must always be required, yet the agency appears to have substituted the word ‘always’ for the word ‘normally.’ This is a misinterpretation and misapplication of the law.”
In India House v. Kevin McAleenan (March 26, 2020), U.S. District Judge Mary S. McElroy ruled that the USCIS Administrative Appeals Office (AAO) decision to uphold a denial of an H-1B petition for a restaurant manager with a B.S. in Hospitality Management was “arbitrary and capricious.” The Administrative Appeals Office said the position for Santosh Shanbhag, whose H-1B petition was denied, was not a specialty occupation because a “specific” degree wasn’t required. The reason? USCIS said according to the DOL Occupational Outlook Handbook, “many [persons in this occupational category] possess a bachelor’s degree in business administration.”
In her opinion, Judge McElroy cited a Forbes article based on National Foundation for American Policy research, showing H-1B “denial rates have jumped dramatically since 2015.” She noted, “During that period, neither the law nor the guidelines have changed.”
The judge noted that as recently as 4 years ago not only had USCIS considered a restaurant manager a specialty occupation but had twice previously approved Santosh Shanbhag’s H-1B petition as a manager for India House.
In support of the view that the position is a specialty occupation, Judge McElroy wrote, “Clearly, a B.S. in Hospitality Management is a specific degree, both as a matter of logic and by recourse to the curriculum it entails. It was awarded to Shanbhag after successful completion of a set of courses that are not useful to any profession outside food services and hospitality management. The very fact that there is a bachelor’s level curriculum dedicated to hospitality management, focused on food services, is indicative of it being a specialty occupation. It is ‘a body of highly specialized knowledge’ and the degree program is the embodiment of ‘its theoretical and practical application.’”
Despite the current uncertainty, companies in the technology sector have been less damaged by recent events and may look to a time when the economy returns to normal. These recent judicial decisions should bring greater certainty that USCIS adjudicators will follow the law when deciding on H-1B petitions.
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