H-1B Litigation Updates – Spring 2020

By Samantha Davis, Immigration Lawyer in Richmond, VA

The H-1B petition requirements have undergone a transformation in the last few years. Along with the implementation of new or additional requirements, the government’s application of existing requirements have changed. This shift in adjudicating H-1B petitions has led to inconsistent decisions and a concern regarding the legal authority given that the different standards occurred without Congress changing the law or USCIS issuing any new regulations. The American Immigration Lawyers Association (AILA), the American Immigration Council and private law firms have filed multiple lawsuits to challenge potentially illegal adjudications. Three major cases have recent updates and decisions rendered in some of these lawsuits.

ITServe Alliance Settlement

In October 2018, ITSERVE Alliance, Inc., a nonprofit corporation that represents the interest of member companies who operate in the information technology sector, filed a district court complaint challenging the H-1B “itinerary regulation” as ultra vires and USCIS discretion to approve H-1B status for any duration it deems supported by evidence submitted by the employer. If the regulation is ultra vires it would mean it was beyond the one’s legal power or authority.

In March of this year the U.S. District Court for the District of Columbia granted summary judgment with respect to certain issues. The court invalidated two USCIS memos and a regulation related to the adjudication of H-1B petitions for applicants at IT consulting firms. The two memos provided guidance on determining employer-employee relationships, particularly in situations where employees are placed at third party worksites, and the provision of contracts and itineraries for H-1B petitions that supported continuous non-speculative work.

The court ruled that, “The current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.” Additionally, the court ruled that USCIS requirements regarding providing evidence of non-speculative work during the visa period are not supported by the statute or regulation. The court further ordered other cases remanded to USCIS for reconsideration.

Earlier this month USCIS entered into a settlement with ITSERVE Alliance and agreed to reopen and re-adjudicate within 90 days the H-1B visa cases that are in litigation. USCIS also agreed to rescind the contract and itinerary memorandum in its entirety and refrain from applying the itinerary regulation until the agency issued new regulatory guidance.

FOIA Lawsuit

In 2017 and 2018 AILA submitted requests for information under FOIA (Freedom of Information Act) seeking USCIS records relating to how the wage level on a Labor Condition Application (LCA) impacts the adjudication of H-1B petitions and records regarding how USCIS determines whether a position is a “specialty occupation”. When USCIS failed to produce any records, the American Immigration Council filed a FOIA lawsuit to compel the agency to produce any responsive records. USCIS provided documentation that shed some light on how quickly changes in adjudication were made, how the agency was reviewing certain issues in petitions and what support the agency was relying on.

One important finding was in a memo discussing the degree requirements necessary to qualify as a “specialty occupation”. A common request for evidence in H-1B petitions, USCIS often challenges the “specialty occupation” nature of a position claiming that the position could not qualify as a “specialty occupation” solely based on the language provided in the Occupation Outlook Handbook (OOH) entry. RFEs often challenge positions when the OOH entry mentions more than one type of degree that could qualify someone for the position.

However, a section of the USCIS memo provided in the FOIA documentation confirms that a requirement of closely related fields of study satisfy the specific specialty requirement. Additionally, a requirement of a bachelor’s degree in multiple disparate fields of study does not automatically disqualify a position from being a specialty occupation if a petition can establish how each field is in a “specific specialty” that is directly related to the duties of the particular position. Documentation also confirms that the OOH is not the sole authoritative source on whether a minimum of a bachelor’s degree in a specific specialty is required for the particular position.

Market Research Analyst Class Action

Petitioners were consistently facing USCIS denials for H-1B petitions filed for market research analyst positions, with USCIS claiming those petitions did not qualify as a “specialty occupation”. On May 4, 2020 attorneys from the American Immigration Council, AILA, and the law firms Van Der Hout LLP, Joseph & Hall P.C., and Kuck Baxter Immigration LLC filed a motion for class certification for their federal lawsuit challenging these denials. The attorneys argued that USCIS is misinterpreting the Occupational Outlook Handbook and unlawfully denying those petitions. In order to certify the class, the plaintiffs argued that “USCIS engages in a pattern and practice of denying petitions for market research analysts on the same basis followed in Plaintiffs’ cases”.

AILA has reported that within weeks of the plaintiffs’ motion for class certification, USCIS reversed the prior denials in both plaintiffs’ cases.

What Does This Mean For You?

These recent decisions and settlement are very encouraging for H-1B petition filers. We hope that these decisions will result in at least a little looser requirements for documenting the employer-employer relationship and itinerary, and more reasonable interpretations of what positions qualify as specialty occupation positions. However, the H-1B adjudication landscape is constantly changing. While we still hope for positive changes, it is also possible that USCIS will issue new guidance or regulations in place of what has been struck down or invalidated. Whatever happens, we are here to help our clients navigate the changes with confidence and peace of mind.

We are here to help you navigate the immigration maze with peace of mind and confidence. Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers in Richmond, VA but we serve clients throughout the U.S. and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.