While the rate of RFE responses to H-1B visa petitions has skyrocketed since 2015, the Denial rate spiked from 6% for FY2015 to 21% in FY2019. At CCI TheDegreePeople.com, we work with difficult cases, RFEs, and Denials every year, and in those years, we saw jobs that had never run into issues before suddenly being regularly hit with Specialty Occupation RFEs and Denials. Something had changed, and it WAS NOT the laws regulating visa approval.
H-1B beneficiaries and their sponsors, immigration attorneys, and others involved in the H-1B process began to suspect USCIS was acting illegally in rejecting perfectly eligible visa petitions. Turns out, federal judges agree.
H-1B visas are for foreign workers in positions that are considered specialty occupations. Federal regulations governing H-1B visa eligibility state that a specialty occupation is a job that normally requires a minimum of a baccalaureate degree or higher or its equivalent. Over the past few years, USCIS has been swapping out “normally” with “always” without any change to laws governing this legal definition of eligibility.
On March 6, 2020, 3Q Digital, Inc. v. USCIS ruled in favor of H-1B sponsor employer 3Q Digital, Inc., whose new hire’s H-1B petition was denied illegally. The H-1B worker was hired to be a Search Engine Marketing Account Manager with a bachelor’s degree in Economics from the University of Massachusetts. USCIS said the job was not a specialty occupation because it did not always require a bachelor’s degree in a specialized field, but normally did. Similarly, on March 26, 2020, Taylor Made Software v. Cuccinelli resolved the issue of whether or not the position of Computer Systems Analyst was a specialty occupation. The Occupational Outlook Handbook stated that the hiring norm was a minimum of a bachelor’s degree in an information science or computer science field, but sometimes business or liberal arts majors are hired if they have IT or computer programming skills as well. The federal judge deciding this case ruled that the description in the Occupational Outlook Handbook supported that the specialized advanced degree requirement was the norm – as per the legal definition of specialty occupation.
On March 26, 2020, in the case India House, Inc. v. Kevin McAleenan, a federal judge ruled against the Administrative Appeals Office’s decision to uphold the denial of an H-1B petition. The employee in question’s H-1B visa had been approved in 2013 and 2016. Like the other two rulings, it was clear that USCIS had acted “arbitrarily and capriciously” in its illegal decision to deny the visa.
These are the issues we help our clients address with credential evaluations and expert letters. This documentation provides compelling evidence that rallies federal judges to hold USCIS accountable. These are the stories of the people we work with. USCIS is acting “arbitrarily and capriciously” and breaking the law to wrongfully deny H-1B visas. These lawsuits are essential for the health of the H-1B visa program, which is vital to the viability of STEM industries in the United States, and US immigration in general. The ONLY way to force USCIS to stop doing this is to hold them accountable by in court, and by successfully overturning illegal RFEs and Denials through expert letters and extensive documentation. These lawsuits serve as legal precedents to protect the rights and strengthen the cases of H-1B petitioners to come.
For a free review of your case visit ccifree.com. We are fully operational with our entire staff working from home and will – as always – respond in 48 hours or less.