Class Action Lawsuit Challenges USCIS’s Unlawful Denial of H-1B Petitions

AILA, Apr. 16, 2020

"The American Immigration Council (Council), the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout, LLP, Joseph & Hall P.C., and Kuck Baxter Immigration LLC filed a nationwide class action lawsuit today challenging U.S. Citizenship and Immigration Services’s (USCIS) pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analysts positions filed by businesses in the United States.

The lawsuit, filed in federal court in the Northern District of California in San Jose, seeks to rein in the unlawful adjudication practice USCIS uses in determining whether a market research analyst job qualifies as a “specialty occupation,” and the agency’s misinterpretation of the Occupational Outlook Handbook—a publication of the U.S. Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States’ job market.

The H-1B visa category allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent in a specific specialty. U.S. employers seeking highly educated foreign professionals submit their petitions to USCIS.

The complaint in MadKudu Inc. v. USCIS alleges that USCIS erroneously denies H-1B petitions for market research analysts by concluding that the Occupational Outlook Handbook does not establish that the occupation is a specialty occupation. According to the complaint, USCIS denied at least 66 market research analyst H-1B petitions in the last three years and six petitions in the first two months of 2020, all of which used the same erroneous reasoning. Based upon these annual statistics, the complaint estimates that, since January 2019, at least 40 U.S. businesses had H-1B petitions for market research analysts denied and that there likely would be hundreds more denials on the same basis in the future.

“Research shows that H-1B workers complement U.S. workers, fill employment gaps in many occupations, and expand job opportunities for all,” said Leslie K. Dellon, staff attorney on business immigration at the Council. “This lawsuit seeks to hold USCIS accountable by ensuring that it follows the law in deciding these petitions.”

"In the last four years, USCIS has shifted its interpretation of various immigration laws, including those governing H-1B visa petitions. This has resulted in a material rise in costs and harm to U.S. employers seeking to temporarily employ talented foreign nationals. The unrelenting unlawful practice of USCIS necessitates class-wide relief,” said Jesse Bless, director of federal litigation at AILA.

“USCIS’ consistent and intentional misapplication of law has negatively impacted many U.S. employers who simply want the agency to follow its own rules when deciding employment-based petitions,” said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.

“Our clients will no longer stand by and let USCIS engage in results-oriented decision making. USCIS has engaged in a pattern and practice of ignoring substantial evidence that clearly establishes that market research analysts are a specialty occupation. Just because one can become a market research analyst through a variety of undergraduate pursuits does not render market research analysts non-professional. Under USCIS’ twisted logic, my English Literature degree rendered me uniquely unprepared to take on the professional specialty occupation of immigration lawyer. That is nonsense,” said Jeff Joseph, senior partner and director of corporate immigration and employer compliance at Joseph & Hall P.C.

A copy of the complaint is here. https://www.aila.org/infonet/complaint-filed-in-district-court-challenging"