On Nov 10 2021 by Arielle J. Ratush

USCIS Settles Class Action Lawsuit for Market Research Analyst H-1Bs

In another legal win for skilled immigrants and their American employers, U.S. Citizenship and Immigration Services (USCIS) has settled a class action lawsuit challenging H-1B denials for market research analysts. The plaintiffs in MadKudu Inc., et al. v. USCIS, et al., represented by the American Immigration Council, the American Immigration Lawyers Association and pro bono attorneys, successfully argued that USCIS arbitrarily and unlawfully denied H-1B petitions for market research analysts claiming the position did not qualify as a specialty occupation. The denials were based on the Department of Labor’s Occupational Outlook Handbook (“OOH”) entry for market research analysts. USCIS decisions relied on the OOH as a definitive statement that market research analyst positions do not normally require a minimum of a bachelor’s degree to qualify for the job, an essential part of the H-1B category. Under the settlement terms, USCIS will issue guidance clarifying that the OOH description does demonstrate the role as a specialty occupation as long as the position requires at least a bachelor’s degree in a related field with an official minor, major, concentration, or specialization in market research, marketing, or research methods. With this settlement, employers can also request USCIS to reopen and re-adjudicate their H-1B petition filed as far back as January 1, 2019.

As background to this case, to qualify as a specialty occupation for an H-1B visa, the position must meet at least one of four criteria. The first criterion is that a postsecondary degree (bachelor’s or higher) is normally the minimum requirement for entry into the occupation. Second, the degree requirement is common in parallel positions among similar organizations in the industry. Third, the employer normally requires a degree (or its equivalent) for the position. Or finally, the position’s duties are so specialized and complex that a bachelor’s degree or higher degree is required. The MadKudu Inc. settlement specifically addresses the first criterion. USCIS originally rejected the plaintiffs’ H-1B petitions based on the conclusion that a bachelor’s degree at minimum was not required to become a market research analyst.

In the past, USCIS has stated that “a position would not qualify as a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position.” Now, USCIS will issue guidance clarifying that a market research analyst position that accepts a bachelor’s degree in Communications, Statistics, Computer and Information Technology, Business Administration, and/or Social Science, may still qualify as a specialty occupation, as long as the petitioner can show that an official minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform these job duties. This specialization must be in a transcript, diploma, or official document from the university registrar. In absence of an official document, the petitioner may submit a letter from the Chair or a professor of the relevant department or an unofficial transcript for consideration.

The settlement notes that USCIS will not consider it a specialty occupation when the petitioner would accept either an employee with an associate’s degree, a bachelor’s degree in a generalized field without the above specialization, and/or a bachelor’s degree unrelated to the position. Going forward, USCIS will adjudicate any pending or future H-1B petitions for market research analysts on a case-by-case basis to establish if it qualifies as a bona fide market research analyst position. The agreement defines a bona fide market research analyst as “one which is consistent with the OOH entry for that occupation that is in effect on the date that the Court approves the settlement agreement, subject to the stipulations set forth in Sections II.C.1.b and c.”

The settlement agreement provides petitioners a second chance to obtain H-1B petitions denied on this ground. USCIS will allow petitioners who filed an H-1B for a market research analyst between January 1, 2019, and October 19, 2021, to submit a Form I-290B, Notice of Appeal or Motion, requesting that their case be reopened and adjudicated according to the terms in the settlement agreement. USCIS will accept these filings for 180 days, and no fee will be charged.

Other District Courts have found also issue with USCIS’s reliance on the OOH to establish the degree requirements for a specialty occupation. In 3Q Digital Inc. v. USCIS, our firm obtained a decision from the District Court stating that “USCIS is improperly relying on the OOH to make legal conclusions about whether a position qualifies as a specialty occupation.” In fact, the Bureau of Labor Statistics itself has a published disclaimer on their website stating that “the information in the OOH should not be used to determine if an applicant is qualified to enter a specific job in an occupation.”

While USCIS still appears to rely on the OOH, this settlement agreement shows a step in the right direction. In deciding future H-1B petitions, USCIS should take into account that there may be multiple disciplines and programs that make their graduates qualified for these very technical roles. Hopefully, with implementation, USCIS adjudications will more closely reflect how employers actually evaluate applicants’ education and qualifications in the current market.

 

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 November 10, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.