Form I-290B requests to re-adjudicate denied H-1B petitions must be submitted by April 26, 2022
Market research analysts have a reason to cheer as the US Citizenship and Immigration Services (USCIS) has agreed to accept it as a speciality occupation for H-1B visas coveted by Indian professionals.
This follows a recent class action settlement in the case of MadKudu Inc., et al. v. USCIS et al. approved by the US District Court, Northern District of California, San Jose Division, on Oct 19.
The lawsuit was filed by four US employers whose H-1B petitions had been denied when USCIS determined that market research analysts were not a “specialty occupation” as required for an H-1B visa classification.
Jobs in the H-1B category require a worker to possess highly specialized knowledge acquired through a bachelor’s or higher degree in a “specific specialty” or equivalent at the entry level.
USCIS based its determination on a flawed interpretation of the market research analyst entry in the Occupational Outlook Handbook (OOH), a Department of Labor publication that includes information about how to enter an occupation, according to the American Immigration Council.
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The plaintiffs requested relief for themselves and other US employers like them whose petitions USCIS would have approved if the agency had not made this decision about the OOH market research analyst entry.
“It provides an opportunity for many employers, rather than just one, to benefit after challenging a petition denial. But no relief would have been possible without the named plaintiffs, who were willing to sue,” the Council said.
“This settlement is an important victory that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K Dellon, senior attorney (business immigration) at the American Immigration Council.
“The settlement gives US businesses another chance to have their H-1B market research analyst petitions approved — this time under new guidance worked out by the parties to the lawsuit.
“Each H-1B petition reopened and approved will represent another opportunity for US employers and the workers they sponsored to advance their business objectives,” she added.
“This settlement strikes the right balance between what the regulations actually say and how employers evaluate a candidate’s professional qualifications in the real world,” said Jeff Joseph, partner at Berry Appleman & Leiden LLP.
“It is our sincere hope that USCIS will now interpret other specialty occupations from a perspective that is in line with what actually happens in the free market,” he said.
If a US employer can establish that it is a MadKudu class member, USCIS will reopen and re-adjudicate the denied H-1B petition if there is time left in the validity period of the certified Labor Condition Application (LCA) submitted with the denied petition.
USCIS officers will re-adjudicate such denied H-1B petitions and adjudicate pending and future H-1B petitions using guidance announced Thursday.
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No fee will be charged for such a request. Class members have until April 26, 2022 to submit a Form I-290B, Notice of Appeal or Motion, to request that certain denied Forms I-129, the immigration agency said.
Class members eligible to submit a Form I-290B are those that filed a Form I-129 H-1B petition between Jan. 1, 2019 and Oct. 19, 2021, for a market research analyst.
USCIS said it will make a decision on all eligible, timely-filed reopening requests within 90 days of receipt of the physical file at the adjudicating office.
USCIS said it will attempt to prioritize reopening requests for petitions with LCAs expiring less than 90 days after the Form I-290B is properly filed with USCIS.
All Forms I-290B must be submitted to the Nebraska Service Center, on or before April 26, 2022.
When submitting Form I-290B, applicant should:
-Include a cover sheet to clearly identify that the Form I-290B is filed by a claimed member of the class.
-Indicate on the cover sheet and Form I-290B the name of the office (name of the Service Center or Administrative Appeals Office (AAO)) that made the last adverse decision.
-Demonstrate class membership by submitting a copy of USCIS’ denial of the underlying H-1B petition.
-If an applicant appealed to, and had their appeal dismissed by the AAO, they should submit a copy of the AAO decision instead of, or in addition to, the service center denial.
– The denial of the original H-1B petition should show that:
-The petition was filed on or after Jan. 1, 2019, through Oct. 19, 2021, (for cases in which the denial does not include the filing date of the petition, you should submit a copy of USCIS’ receipt notice for the petition).
-USCIS found that the job fell within the market research analyst occupation;
-USCIS considered the OOH entry for market research analysts;
-USCIS found that the market research analyst occupation was not a specialty occupation under the first regulatory criterion at 8 CFR 214.2(h)(4)(iii)(A)(1); and
-The sole basis for the denial was that the position was not within a specialty occupation.
-Demonstrate (for example, by submitting a copy of the LCA filed with the denied petition) that there is any amount of time remaining on the period specified in the certified LCA at the time that the I-290B is filed.
-State in the reopening request that the applicant requests reopening.
-Provide a receipt number for the underlying Form I-129 petition.
-Confirm that the offer of employment as stated in the underlying Form I-129 petition remains valid.
-Indicate if the applicant wants a new start and/or end date for the validity period (as long as the new date(s) falls within the period in the certified LCA previously submitted with the petition).