Lawsuit challenging unlawful H-1B denials granted by US court
A US court has granted class certification to a legal challenge of certain unlawful practices of the US Citizenship and Immigration Services (USCIS) relating to the H1-B visa route.
The lawsuit was filed in the federal court in the Northern District of California by the American Immigration Council.
The subject of the challenge is the allegation that USCIS has been systematically denying immigrant employment-based petitions for market research analyst roles.
It is alleged the denials are resulting from USCIS’ erroneous application of the first test for a specialty occupation when determining whether the market research job qualifies as a speciality occupation:
“an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
It is also alleged the USCIS has misread the Department of Labor’s Occupational Outlook Handbook (OOH) profile for market research analysts.
The case against USCIS identifies at least 60 denials for market research analyst H1-Bs over the past three years.
The certification does not rule on the substance of the matter, but allows for court action, in a single lawsuit, to seek a remedy for all businesses that employ market research analysts and indicates a path forward for employers.
It is hoped that under the new Biden Administration, USCIS decision-making and practices will refocus to better consider economic impact.
US immigration advice
NNU Immigration specialize in supporting employers and specialist workers with US travel plans. We are highly experienced in advising on the relevant immigration options and guiding sponsors and their sponsored workers through each stage of the application and interview process. For advice on meeting your people mobility needs, contact our US immigration attorneys.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: November 30, 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
