Is Market Research Analyst ruling a good sign for H-1B petitioners?
In December 2018, I got an unpleasant surprise.
My first – and only – H-1B petition denial since I started my firm in 2010.
The petition I put forth was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.
In this case I had prepped the client, submitted a thorough petition, and responded to all requests for evidence.
Unfortunately, this unpleasant surprise was not a shock. I knew USCIS’s scrutiny had intensified, creating a downward trend on approvals.
USCIS Scrutiny Oversteps Bounds
H-1B visas pertain to specialty occupations, jobs that by definition require a bachelor’s degree.
When assessing an H-1B petition, USCIS consults one of two sources to check the job requirements. The first, and most common, is the Occupation Outlook Handbook (OOH). The second is O*Net.
Job descriptions in the OOH word bachelor’s degree requirements in various ways. It will say a job “typically requires a bachelor’s degree” or “normally requires a bachelor’s degree” or “a bachelor’s degree may be required.”
Until recent years, those descriptions sufficed to qualify a position as H-1B eligible. The wording was understood to reflect the reality that employers look for candidates with bachelor’s degrees for those positions.
During the past administration, however, USCIS resorted to a stricter interpretation of those statements.
Seizing on the notion that qualifying words like “normally,” “typically,” and “may be” signify it is not always the case, USCIS began denying petitions for positions it had approved in the past.
USCIS Unlawful Denial Challenged
One position that got caught in USCIS’s crosshairs was market research analyst.
USCIS was arbitrarily denying H-1B market research analyst petitions for not qualifying as a “specialty occupation” based on the OOH description.
Noticing this pattern, the American Immigration Council, the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout LLP, Berry Appelman & Leiden LLP, and Kuck Baxter Immigration LLC brought a class action lawsuit.
USCIS tried to get the case dismissed. When all attempts failed, they reached a settlement agreement.
Settlement Agreement Is a Good Sign
The settlement agreement corrects the agency’s error and stipulates that employers whose H-1B market research analyst petitions were denied between January 2019 and October 2021 may request that USCIS reopen and re-adjudicate their cases.
This ruling has raised hopes among the immigration law community that arbitrary denials based on failing to qualify as a “specialty occupation” will cease for other positions.
We view the ruling as setting precedent.
I am hopeful this is an omen for a future that will be kinder to foreign nationals working in the U.S.
I am also wondering what would happen if I could reopen my client’s case for the operations research analyst H-1B. Though the denial came a month before the designated period to reopen market research analyst H-1B petition considerations, I bet we would have a good shot at approval.
If you or someone you know were denied an H-1B visa between January 2019 and October 2021 based on USCIS reading the “specialty occupation” requirement in a narrow manner and would like to have your case reopened, please contact me at 630.262.1435 or by replying to this email.