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Immigration Law

Court Slaps Down USCIS In Significant H-1B Visa Case: InspectionXpert v. Cuccinelli

Stuart Anderson, Forbes, Mar. 9, 2020

"A federal judge ruled U.S. Citizenship and Immigration Services (USCIS) improperly denied an H-1B petition after the agency claimed the position did not qualify as a “specialty occupation.” This is the first known case where a federal judge has analyzed whether the USCIS interpretation of its H-1B regulation is entitled to deference under the recent Supreme Court Kisor decision – and the judge determined the USCIS interpretation was not entitled to deference.

The judge rejected the USCIS assertion that it had the right to deny an H-1B petition because the position did not require a degree in a specific subspecialty and could be filled by someone with a degree in more than one discipline, such as different types of engineering degrees. ...

... [Plaintiff's attorney Bradley] Banias notes due to the Kisor decision judges will no longer “rubber stamp” agency interpretations. He pointed out Judge Auld even made clear that the USCIS policy manual would not receive deference.

The Administrative Procedure Act “allows a court to set aside an agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” noted Judge Auld. He found because USCIS failed to address the evidence of experts, such as the letters from CEO Cope and Professor Wodo, “the [USCIS] Decision falls short under the arbitrary and capricious standard. . . . For this reason as well, the Court should grant Plaintiff’s Motion to set aside the [USCIS] Decision.”

In the end, the judge ruled USCIS may not use an arbitrary definition of a specialty occupation when evaluating the degrees relevant to an H-1B position: “That the [USCIS] Decision deemed an engineering degree requirement too generalized further confirms the unreasonableness of the Decision’s interpretation. . . . Put simply, in contrast to a liberal arts degree, which the Service deemed ‘an [in]appropriate degree in a profession’ because of its ‘broad[ness]’ . . . an engineering degree requirement meets the specialty occupation degree requirement.”

If followed by U.S. Citizenship and Immigration Services, Judge Auld’s decision will limit the ability of USCIS adjudicators to deny H-1B petitions on the grounds a position does not qualify as a specialty occupation. “For years, USCIS has used nonsensical distinctions to deny H-1Bs,” said Bradley Banias. “This opinion will allow employers to push back hard.” "