A federal judge has granted class certification in a lawsuit challenging the alleged pattern and practice of the US Citizenship and Immigration Services arbitrarily denying H-1B non-immigrant employment-based petitions for market research analyst positions filed by businesses in this country.
The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.
The lawsuit — filed in federal court in the Northern District of California by the American Immigration Council, the American Immigration Lawyers Association, along with law firms Van Der Hout LLP, Joseph & Hall PC, and Kuck Baxter Immigration LLC — seeks to rein in the unlawful adjudication practice the US Citizenship and Immigration Services (USCIS) uses in determining whether a market research analyst job qualifies as a specialty occupation.
The lawsuit also points to the agency’s misinterpretation of the Occupational Outlook Handbook — a publication of the US Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States’ job market, according to a statement.
“The H-1B visa category allows employers to petition for highly educated foreign professionals to work in specialty occupations that require at least a bachelor’s degree or the equivalent in a specific specialty. US employers seeking highly educated foreign professionals submit their petitions to USCIS,” it said on Thursday.
“This ruling is an important victory as we can now ask the court to take action, in a single lawsuit, that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K. Dellon, staff attorney (business immigration) at the American Immigration Council.
“Research shows that H-1B workers complement US workers, fill employment gaps in many occupations, and expand job opportunities for all,” Dellon said.
“While this victory opens an opportunity for the entire class, I want to recognise and celebrate the courage of the named plaintiffs, and now class representatives, for stepping forward on behalf of those similarly aggrieved,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.
“We are hoping that a new administration brings more sensible business immigration policy to USCIS adjudications,” said Jeff Joseph, senior partner and director of corporate immigration and employer compliance at Joseph & Hall P C.
“When you have to litigate about whether only one particular degree can lead to a variety of professional specialty occupations, you know that the government is just reaching for reasons to deny cases,” Mr. Joseph said.
We are delighted that the court is holding USCIS accountable in how it adjudicates these H-1B visas. Hopefully, USCIS will learn the lesson the court is teaching it here — follow your own laws and regulations, said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.
