Indian computer programmer entitled to H-1B visa: US court

H-1B denial due to flawed interpretation of “specialty occupation,” rules Ninth Circuit.

US Citizenship and Immigration Services (USCIS) erred in denying an H-1B temporary worker visa for an Indian computer programmer due to a flawed interpretation of “specialty occupation” and a failure to consider all of the evidence, a US court has ruled.

California tech company Innova Solutions Inc. can hire Dilip Dodda, an Indian citizen with a bachelor’s degree as a computer programmer, the Ninth Circuit ruled last Wednesday citing USCIS’ flawed interpretation.

To obtain an H-1B visa for Dodda, Innova, which provides cloud storage and data analytics services, had to prove that the position required theoretical and practical application of highly specialized knowledge, Bloomberg law reported.

READ: US court rejects increased H-1B denials under Trump (March 11, 2020)

USCIS determined that Innova Solutions LLC didn’t establish that its computer programmer position for Dodda “normally” required a bachelor’s degree, as mandated for specialty occupations under H-1B regulations.

However, it reached that conclusion while relying solely on the Labor Department’s “Occupation Outlook Handbook,” which states that bachelor’s degrees are the “typical” level of education that most computer programmers need and that “most” programmers have those degrees, a unanimous panel of the US Court of Appeals for the Ninth Circuit said.

“Typically” and “normally” are synonyms and there “is no daylight” between the two, Judge John B. Owens wrote for the panel, which reversed a lower court’s ruling in favor of the agency.

“While it is theoretically possible that there is ‘space’ between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it,” Owens said, concluding that the USCIS’s decision was arbitrary and capricious.

READ: H-1B employers failed to appeal H-1B visa denial in 98 percent cases in 2019 (November 26, 2019)

The USCIS has “a track record of ignoring the language in the OOH and issuing decisions arbitrarily without putting any checks in place,” said Jonathan Sturman, lead counsel for Innova Solutions, as cited by Bloomberg law.

Sturman said the Ninth Circuit’s ruling “will certainly provide clarity as to what does and does not qualify as a specialty occupation under the standards set forth by the government.”

Moreover, “while this decision was dealing with the particular position of computer programmer,” Sturman thought “it would be applicable to a wide range of positions.”

A USCIS representative cited by Bloomberg law said the agency was reviewing the court’s ruling.

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