Employers May See Relief from “Arbitrary” USCIS H-1B Policies

Judge Rules “Specialty Occupation” Interpretation is “Arbitrary and Capricious”

In an extensive exploration of the qualifications for H-1B specialty occupation, a federal judge ruled that a recent USCIS denial for an H-1B visa was based on an “arbitrary and capricious standard.” In the decision, the judge noted that the Administrative Procedure Act “allows a court to set aside an agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In multiple pages of analysis, Judge L. Patrick Auld pointed to the USCIS denial that determined an engineering degree requirement as too generalized, which “further confirms the unreasonableness of the Decision’s interpretation.”

Judge Auld was ruling on a case brought forth by InspectionXpert Corporation against Kenneth Cuccinelli in his leadership of the U. S. Citizenship and Immigration Services agency. USCIS denied an H-1B petition for a Quality Engineer position for a beneficiary with a master’s degree in mechanical engineering. In the company’s support letter, it was stated that this position requires a Bachelor’s degree or higher in Mechanical Engineering, Computer Science, or a related technical or engineering field.

In the USCIS denial, the agency claims that “the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics.” The agency goes on to claim that engineering “or one of its other subspecialties, such as civil engineering or industrial engineering, is not closely related to mechanical engineering.”

The court determined that the USCIS decision “rather than requiring a degree in a ‘specific specialty,’ it interprets the Provision to require a degree in a specific “subspecialt[y].” Judge Auld determined this was unlawful and that “Moreover, the Decision’s interpretation conflicts with the Agency’s longstanding construction, which recognizes that a position can qualify as a specialty occupation even if it permits a degree in more than one academic discipline.”

The court’s decision goes on to delve into how the Immigration and Nationality Act (INA) has defined professions historically:

“Importantly, the INA defines professions — the basis of the H-1B Regulation’s specialty occupation requirement — at the categorical level (e.g., “lawyers” and “teachers,” 8 U.S.C. § 1101(a)(32), rather than “tax lawyer” or “college English professor,” see id.) and specifically includes “engineers,” id. In addition, the specialty occupation provision arose from a need “to meet labor shortages . . . in occupational fields, such as nursing, engineering, and computer science.” 1988 Proposal, 53 FR 43217-01, at 43218. Put simply, in contrast to a liberal arts degree, which the Service deemed “an [in]appropriate degree in a profession” because of its “broad[ness],” 1990 Rule, 55 FR 2606- 01, at 2609, an engineering degree requirement meets the specialty occupation degree requirement.”

He ruled that because USCIS did not address the entirety of the evidence and the decision departs from the agency’s “longstanding construction, which recognizes that a position can qualify as a specialty occupation even if it permits a degree in more than one academic discipline.”

Implications for H-1B Employers

Companies have seen an increase in Requests for Evidence (RFEs) and denials on specialty occupation issues, but especially for roles that fall into the “Computer Occupations, All Other” category in the Occupational Outlook Handbook. This court decision limits the ability of USCIS to apply a “subspecialty” standard when the regulations outline the necessity of a “specialty” degree instead.

In order to make a stricter “subspecialty degree” a requirement, the agency would need to formally update regulations rather than relying on adjudicating officers to deny petitions on an ad hoc basis. However, USCIS has signaled it plans to publish a rule that would “revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” With the latest setback in court, we may see this rule prioritized by the agency to continue to implement the the “Buy American and Hire American” Executive Order agenda.

Below are some tips to help your H-1B get approved:

  • Consult with an immigration attorney to ensure the position meets H-1B regulations for a specialty occupation.
  • Develop a detailed job description that clearly lists job duties and make sure the position matches the required salary.
  • Explain how the position is specialized and requires a minimum of a bachelor’s degree.
  • H-1B applicants must have all documentation translated into English with a valid translation certificate attached.
  • If the degree is from a foreign institution, plan to have a credentials evaluation completed.
  • Double check the required filing fees and decide whether to utilize premium processing.

Employers also need to ensure strict compliance to the H-1B regulations and file timely amendments or extensions for employees who could shift job duties or be near the end of a project.

H-1B Memos on Employer-Employee Relationship and Third-Party Worksite Issues Overturned by Federal Judge

Over the past few years, a series of USCIS policy memos have changed adjudication trends, causing increased Requests for Evidence (RFEs) and denial rates despite no formal rulemaking changing the regulations. On March 10, 2020, U.S. District Judge Rosemary Collyer determined that these memos and policies contradicted existing regulations (8 C.F.R. Sec. 214.2(h)(4)(ii)).

While USCIS began claiming employers must have “actual control” of employees while they perform work, one of the arguments the ITServe Alliance attorneys made was regarding the definition of employer, which was borrowed from the Department of Labor. The regulations state that an employer “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” Employers placing employees at third-party worksites were often challenged to explain and prove the employer-employee relationship in RFEs. In USCIS denials, the agency often claims that employers placing these employees at customer sites did not qualify as employers. In the decision for ITServe Alliance v. L. Francis Cissna, Judge Collyer wrote:

“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.”

Judge Collyer also addressed the recent practice of USCIS providing shortened approval periods, including one example of an H-1B visa valid for a single day. USCIS stated that the regulations and the 2018 memo titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” allowed the agency to request proof of non-speculative work assignments for the entire duration of the requested visa statute. When employers weren’t able to provide a detailed list of all contracts or work performed during a three-year requested period, USCIS was denying the H-1B petitions and claiming the position is not a specialty occupation. However, the court decision said these requirements were:

“not supported by the statute or regulation and is arbitrary and capricious as applied… These requirements were also announced and applied without rulemaking and cannot be enforced. USCIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in nonproductive status and is, therefore, no longer enforceable.”

The nonproductive status mentioned was a reference to the “anti-benching” segment of the ACWIA (American Competitiveness and Workforce Improvement Act) that allows employers to maintain H-1B employees during nonproductive periods (i.e. between projects or contracts) if the employee is still being paid.

Judge Collyer called the contracts and itineraries requirements a “total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses” and points to the use of the memo as “legislative” because “it would effectively destroy a long-standing business resource without congressional action.”

This is good news for employers, who should start receiving longer approval notices going forward. Longer approvals mean lower legal and filing fees and greater job security and stability for H-1B employees.

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