Preliminary Settlement Agreement on H1B Denials of Market Research Analysts20 Sep 2021
A U.S. federal district court has preliminarily approved a settlement agreement related to H1B petitions filed for market research analyst positions. The lawsuit stems from the U.S. Citizenship and Immigration Services (USCIS) taking a stand that the position of a market research analyst is not a specialty occupation, resulting in numerous H1B denials. Pursuant to the tentative settlement agreement, if a petitioning employer’s H1B petition was filed on or after 01.Jan.2019, and denied solely based on not having been considered a specialty occupation, the employer may be eligible to file a motion to reopen with the USCIS within a certain timeframe.
Class Members May Request Reopening of H1B Petition Denials
The settlement agreement defines class members as any U.S. employer that filed an H1B petition for a market research analyst between 01.Jan.2019 and the date the court approves the final settlement agreement, where the petition was denied solely based on the USCIS finding that the position was not a specialty occupation.
Timeline for Finalizing Agreement and USCIS Posting Info on its Website
The deadline for any class member to object to the settlement agreement is 04.Oct.2021. A fairness hearing to review the agreement is scheduled for 19.Oct.2021. Assuming the agreement is finalized, the agreement will go into effect five days after the approval, and the USCIS will then post instructions on its website within ten business days.
The USCIS announcement will state that an eligible class member may file a motion to reopen on the denied H1B petition, without any filing fee, and request that the USCIS re-adjudicate the petition based on the new agreement. A qualifying class member will have 180 days from the date of the USCIS announcement to file the motion.
Required Information for Motion to Reopen and Validity of H1B Approval
To move for reopening the denied H1B petition as a class member, the petitioner will need to explicitly request reopening and provide the receipt number of the petition. The petitioning employer will also need to confirm that the employment offer continues to remain valid and indicate if the petitioner wants a new start and/or end date for the validity period, as long as the dates fall within the period of the labor condition application (LCA) filed with the initial petition.
USCIS to Issue Guidance on Position of Market Research Analyst
The settlement agreement further requires the USCIS to issue guidance confirming that a bachelor’s degree or higher in a specific specialty is normally required to work as a market research analyst, as described in the Occupational Outlook Handbook (OOH). The guidance will also acknowledge a degree in business administration with an official minor, major, concentration, or specialization in market research, marketing, or research methods, is not a generalized degree. Further, if a petitioning employer will accept a bachelor’s degree or higher in communications, statistics, computer and information technology, and/or social science, the position may qualify as a specialty occupation if the petitioner can show that an official minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform the duties.
This resolution is a good starting place for employers and individuals who have suffered H1B petition denials in the past for market research analyst positions. It further serves as a reminder of the ability to challenge the USCIS if the agency violates a law, regulation, or policy.
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