Murthy Success: USCIS Reverses Denial on Specialty Occupation to Approve H1B Petition13 Apr 2020
The Murthy Law Firm recently scored another legal victory in federal court, suing the U.S. Citizenship and Immigration Services (USCIS) over an H1B petition denial based on lack of specialty occupation. Our legal team examined the denial and concluded that the legal reasoning used by the USCIS in denying the petition was flawed. Our client agreed to sue and, after presenting our legal arguments to a federal judge, the USCIS ultimately agreed to approve the petition.
While this was an important victory for our client, it should also serve to encourage employers not to be intimidated into accepting flawed H1B denials. With the sharp increase in denials by the USCIS, employers should recognize that, if the reasoning behind a denial is not legally sound, federal courts provide an avenue to ensure that justice is served.
Background on Case
In 2019, the employer, an IT consulting firm, had filed a cap-subject H1B petition for a foreign national who would be providing tech services for one of the petitioner’s clients. The employer required a candidate with at least a bachelor’s degree in computer science, electrical engineering, a closely related engineering field, or the equivalent.
In order to demonstrate that an H1B position is a specialty occupation, the petitioner must demonstrate at least ONE of the following four criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that knowledge required to perform the duties usually is associated with the attainment of a baccalaureate or higher degree.
In denying the petition, the USCIS determined that a bachelor’s degree or higher was not normally the minimum requirement for the position. The USCIS also determined that such a degree was not common in the industry for parallel positions, and that the nature of the duties was not so specialized and complex that a degree would be necessary. Finally, the USCIS also found that the employer had not evidenced that it normally required a degree for this position.
Murthy Takes Case to Federal Court
Although this Murthy Law Firm client had the option to file a motion to reopen (MTR) or appeal, no such action is required before suing in federal court. For a variety of reasons, our attorneys recommended that the client skip pursuing an MTR or appeal, and instead file suit against the USCIS.
In our initial filing with the federal court, we detailed how the USCIS denial had been arbitrary and unlawful. We went through each of the four criteria that can be used to demonstrate that a position is a specialty occupation. Although the employer needs to satisfy only one of the four requirements, we argued that the evidence on record satisfied all four criteria.
USCIS Agrees to Approve Case to Avoid Its Going to Trial
Once a lawsuit is filed, the USCIS has the option to try to settle the matter with the plaintiff rather than proceeding to trial. We presented a very strong legal case to the court, so we were confident that either the USCIS would feel compelled to make an offer that would satisfy our client, or else we would be able to convince the judge to rule in our client’s favor. The USCIS apparently recognized the strength of our case, and therefore presented us with two options for settling the matter. The USCIS offered to approve the case through the end date listed in the statement of work (SOW) submitted with the initial filing. In the alternative, the USCIS offered to reopen the case and issue a request for evidence (RFE) on availability of work; and, in responding to the RFE, we could provide an updated SOW, which would allow the USCIS to approve the petition for a longer period of time.
Although we could have rejected both offers and asked for the judge to approve for the full three years, this would have prolonged the process. Our client determined that the second option would meet its needs, recognizing this would provide a relatively quick resolution. As negotiated, the case was reopened, an RFE was issued, and we responded with the updated SOW. The USCIS then swiftly approved the petition through the end date listed in the new SOW.
The USCIS is bound by federal laws and regulations in how H1B petitions are reviewed. When the USCIS fails to comply with the rules it is sworn to administer, federal courts are available to intervene. H1B employers who are considering a lawsuit against the USCIS for unjust H1B denials are invited to schedule a consultation with a Murthy Law Firm attorney to determine the best course of action.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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