On Mar 09 2020 by Jordan J. Gonzalez

Court Overturns USCIS’s Narrowing of Professional Visa Eligibility

The H-1B visa is the most popular work visa program for professional-level employment in healthcare, technology, finance, and other businesses. Nevertheless, for the last several years, USCIS has adopted a very narrow definition of the term “specialty occupation” for the purpose of denying unprecedented numbers of H-1B petitions. A recent decision from the District Court for the District of Columbia repudiates USCIS’s narrow interpretation in a venue where APA review is always proper. The new precedent should deter USCIS from continuing use of its restrictive interpretation heading into this year’s H-1B Lottery, which is projected to be the largest lottery ever.

H-1B is a work visa program that allows U.S. employers to sponsor foreigners to work in a “specialty occupation[s],” or jobs that normally require, at a minimum, a bachelor’s degree to enter the occupation. As there are jobs across all industries that meet this criterion, H-1B has situated itself as a highly utilized work visa. Usage has been so high that for the last decade, immigration agencies have had to use a lottery to divvy-up the annual limit of 85,000 visas; last year alone there were over 201,000 petitions filed seeking those 85,000 available visas.

The program’s high usage has not gone unnoticed. Indeed, under an administration that takes its immigration policy cues from immigration hardliner Stephen Miller, a vehement critic of the H-1B program, denial rates have quadrupled. The top reason for denial: the specialty occupation element itself.

Once again, a specialty occupation is a job that “normally” requires “a” bachelor’s degree. Over the past several years, USCIS has locked-in to the term “normally” and defined it very narrowly to mean “always.” Under USCIS’s interpretation, therefore, positions like Computer Systems Architects or Software Developers that do not always require a bachelor’s degree are not necessarily specialty occupations. USCIS takes this position despite the U.S. Department of Labor (DOL)’s observation that job openings under the above-mentioned categories mostly require a bachelor’s degree. Under USCIS’s view, if you can imagine a fringe case where a non-bachelor’s degree holder can perform the job, the position is not a specialty occupation. Under this logic, CEO positions are not specialty occupations because Mark Zuckerberg and Bill Gates were both college dropouts.

USCIS has also changed the meaning of “a degree” to mean “a degree in a specific field.” In other words, a job that does not require “a specific” bachelor’s degree is not a specialty occupation. Mathematicians, under this logic, are not specialty occupation workers, as there are several bachelor’s degrees (e.g., Economics, Math, Statistics) that could prepare one for this career. Similarly, Petroleum Engineers are not specialty occupation workers because one can become a Petroleum Engineer by acquiring a bachelor’s in Petroleum, Mechanical, Civil, or Chemical Engineering.

Several courts have rejected USCIS’s equating of the term “normally” to “always.” A notable example is Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y Sep. 29, 2017), in which the judge observed: “[T]his Court is at a loss to see a ‘rational’ connection between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’s determination that ‘computer programmers are not normally required to have a bachelor’s degree.’”. Others have had similar reactions to prior attempts to narrow the “specialty occupation” definition, such as the court in Tapis Int’l v. INS, 94 F Supp. 2d 172 (D. Mass 2000, which concluded: “It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.”.

Last week, Klasko Immigration Law Partners, LLP received a decision in 3Q Digital, Inc. v. United States Citizenship and Immigration Services from Judge Royce C. Lamberth of the D.D.C. In 3Q Digital, an employer filed an H-1B petition to fill the position of “Search Marketing Account Manager.” The position required a bachelor’s degree in Economics, Marketing, Business, or another related field. 3Q Digital supported its petition with DOL data reflecting 78% of employers in the industry requiring a bachelor’s degree in same or similar positions. Under its narrow reading, USCIS found this data as insufficient to prove the role was a “specialty occupation.” Under USCIS’s rationale, not all Search Marketing Account Managers required a bachelor’s degree, much less a specific degree. Thus, USCIS found that the Search Marketing Account Manager did not “normally require a bachelor’s degree or foreign equivalent.” 3Q Digital challenged these findings as arbitrary and capricious under the Administrative Procedure Act.

Reviewing the denial of what the D.D.C. characterized as a “highly deferential” standard, the Court found that USCIS inappropriately substituted the word “always” for “normally.” The Court characterized this interpretation as a plain “misapplication of the law,” holding employers to a “higher standard than…set by the regulation.” The Court also found USCIS’s “a specific” interpretation to be invalid. In so ruling, the Court noted that “there is no mention [in the regulations that] the degree…be in any specific field or set of fields.” Thus, the fact that not all Search Marketing Account Manager positions required a bachelor’s degree, and that one could prepare for said position through various degrees programs, should not have formed the basis of a denial. The court granted the employer’s motion for summary judgment and ordered the agency to approve the petition.

The 3Q Digital decision has major implications nationwide in that it invalidates the interpretations USCIS has relied upon the most to deny H-1B petitions. Critically, this decision controls in a venue where USCIS is always subject to federal APA review. The hope is that 3Q Digital marks a turning point in the national H-1B adjudicatory process, as any decision that contradicts 3Q Digital is now subject to reversal. USCIS has until April 6, 2020 to decide whether to appeal.

At a minimum, 3Q Digital represents a reprieve from USCIS’s hardline interpretations. The decision could not have been better timed, as a record-breaking number of H-1B petitions are set to be filed before the end of March 2020.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the March 11, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.