Denial of H-1B visas to market research analysts challenged

Photograph of a U.S. Department of Homeland Security .

US judge grants class certification to lawsuit against USCIS’ pattern and practice.

A US federal judge has granted class certification to a lawsuit challenging US Citizenship and Immigration Services’ (USCIS) pattern and practice of arbitrarily denying H-1B applications filed for market research analyst positions by US based sponsoring employers.

High skilled tech professionals from India get about two thirds of the 65,000 H-1B non-immigrant visas annually that allow US companies to employ foreign workers in specialty occupations.

The lawsuit seeks to rein in the unlawful adjudication practice the USCIS uses in determining whether a market research analyst job qualifies as a specialty occupation.

The case was filed in federal court in the Northern District of California by the American Immigration Council, the American Immigration Lawyers Association, along with law firms Van Der Hout LLP, Joseph & Hall PC, and Kuck Baxter Immigration LLC.

READ: Trump H-1B ban cost America $100 billion: Brookings (October 22, 2020)

The lawsuit also points to the agency’s misinterpretation of the Occupational Outlook Handbook — a publication of the US Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the US 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. US employers seeking highly educated foreign professionals submit their petitions to USCIS,” it said.

“This ruling is an important victory as we can now ask the court to take action, in a single lawsuit, that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K. Dellon, staff attorney (business immigration) at the American Immigration Council.

“Research shows that H-1B workers complement US workers, fill employment gaps in many occupations, and expand job opportunities for all,” Dellon said.

“While this victory opens an opportunity for the entire class, I want to recognize and celebrate the courage of the named plaintiffs, and now class representatives, for stepping forward on behalf of those similarly aggrieved,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.

“We are hoping that a new administration brings more sensible business immigration policy to USCIS adjudications,” said Jeff Joseph, senior partner and director of corporate immigration and employer compliance at Joseph & Hall P C.

“When you have to litigate about whether only one particular degree can lead to a variety of professional specialty occupations, you know that the government is just reaching for reasons to deny cases,” Joseph said.

“We are delighted that the court is holding USCIS accountable in how it adjudicates these H-1B visas. Hopefully, USCIS will learn the lesson the court is teaching it here — follow your own laws and regulations,” said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.

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