Lawsuit Filed Against USCIS by the American Immigration Council
October 22nd, 2018
In lawsuit AIC challenges USCIS’s denial of H-1B extension
The American Immigration Council (AIC) filed a lawsuit against U.S. Citizenship and Immigration Services (USCIS) on behalf of a large employer and its valued employee. USCIS denied the employee’s H-1B extension petition on the grounds it was “not a specialty occupation,” though the plaintiffs provided probative evidence that it indeed was after USCIS initially requested further evidence.
AIC is seeking declaratory and injunctive relief and review of USCIS’s action under the Administrative Procedure Act (APA) on behalf of the plaintiffs. They allege that USCIS acted arbitrarily, capriciously, and contrary to the law having misinterpreted the Department of Labor’s Occupational Outlook Handbook.
The court’s decision in this case may very well help set the definition of a specialty occupation. Or, it may at least what evidence is considered probative in proving the case.
To remain in compliance with the law, employers must file requests for the extension of sponsored employee’s H-1B status while the employee waits for visas for permanent residence to be available. Relevant to this case, Congress has enacted a provision that allows for a three-year extension of H-1B status for a foreign national who meets certain requirements associated with the process of acquiring lawful permanent residence when visas are unavailable. This waiting process can take many years.
USCIS, however, erroneously, as AIC alleges, determined the plaintiff was not working in a specialty occupation. This generally means that the position held by the worker did not meet the requirements for an H-1B. Since the petition requested an extension of the employee’s H-1B status, presumably USCIS had already determined that the position qualified as a specialty occupation. Although USCIS is not required to give deference to prior decisions, the results of this case were particularly harsh. USCIS’s decision would force the plaintiff, the plaintiff’s spouse, who is dependent on their status, and the couple’s U.S. citizen children to return to the plaintiff’s country of origin.
The Plaintiff’s Case
The plaintiff holds a Master of Science degree in a specialized field. The employer requires possible job candidates to hold at least a Bachelor of Science to qualify for the job. According to AIC’s lawsuit, this should meet the H-1B visa requirements. Specifically, the job required the plaintiff to use specific training they had received while earning their master’s degree.
Pursuant to USCIS’s request for evidence, the employer demonstrated that the position satisfied three of the four alternative regulatory criteria. Any one of these would have satisfied the specialty occupation clause alone. Furthermore, they showed that the job required a minimum level of baccalaureate education. They also identified 11 similar job advertisements from other similar employers that had the same minimum educational requirements. And, they identified seven of their own employers in similar positions that possessed related, though different, bachelor’s degrees.
In their decision, though, USCIS cites the Occupational Outlook Handbook. It concluded that the job did not require a degree in a specific field and that degree requirements in job listings did not indicate a specific specialty was common. Furthermore, they concluded that the field did not qualify as a specific specialty because it includes undifferentiated degrees. USCIS’s decision hinges upon the specificity of the education required.
In the lawsuit, plaintiffs allege the USCIS decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law because it denied the H-1B extension petition solely on the grounds that the job position was not a specialty occupation despite the clear evidence that the plaintiffs submitted satisfying three of the four regulatory criteria.
They allege that USCIS failed to consider all the evidence and misinterpreted the Occupational Outlook Handbook entry on the occupation.
The plaintiffs are seeking that the court declare USCIS’s decision that the plaintiffs’ evidence was insufficient as arbitrary and capricious. They are also requesting the court vacate the denial of the H-1B extension petition and remand to USCIS for petition approval.
AIC is a nonprofit that is a self-described “powerful voice” on behalf of immigrants and promoting the history of the U.S. as a nation of immigrants. They do so by bringing suits against the government for what AIC believes are restrictive interpretations and implementations of the law and when the government fails to meet the expectations of the law. Through research and analysis, it challenges the myths and misinformation surrounding the debates about immigration. And, AIC also promotes cultural exchange by sponsoring interns and trainees in its Exchange Visitor Program.
For Further Information
This blog post does not serve as legal advice and does not establish any client-attorney privilege. Do not take any action based on the information contained in this post without consulting a qualified immigration attorney. If you have any questions, please do not hesitate to contact our legal team directly.
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This information comes from AILA Doc. No. 18101634.
Categories: Immigration News