The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the U.S. Citizenship and Immigration Services (USCIS) violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.
The Court rejected the narrow interpretation of “specialty occupation” used by the USCIS, under which only a single academic discipline could be the requirement for an H1-B position. The Court said that deriving knowledge and skills form a single academic discipline is not the only measure by which a specialty occupation can be established, rather the knowledge and skills may be gained from multiple majors. This broadens the definition in favor of employers who often find multiple majors useful and equally acceptable for certain jobs.
Among other things, the Court noted that the agency’s failure to set forth its reasons for a decision constituted arbitrary and capricious action. The Court set aside the denial of the H-1B petition for the data analyst. The Court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening “highly suspect and contrary to the regulations.”
Context: What is an H-1B Visa?
An H-1B visa is a non-immigrant employment based visa. The H-1B allows employers to temporarily hire foreign nationals who have earned at least a bachelor’s degree in specialized occupations. In order to qualify for an H-1B visa, the employer and employee must meet several criteria:
- You must have an employer-employee relationship with the petitioning U.S. employer.
- Your job must qualify as a specialty occupation by meeting certain specified criteria.
- Your job must be in a specialty occupation related to your field of study.
- You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
- An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
(For more on what an H-1B visa is and how it is different from an employment based green card, click here.)
Requirement 3: Defining Specialty Occupation
Historically, some occupations have been easier to define as specialty than others. For instance, a lawyer will have earned a law degree in order to work. In those cases, the occupation is linked to a singular degree, making it highly specialized. Other fields may require more detail. One resource lawyers and their clients, as well as USCIS, turn to is the Occupational Outlook Handbook (OOH). This gives a description of average educational requirements for an occupation. For example, the OOH makes clear that someone who wanted to be a dolphin handler would find that “marine mammal trainers usually need a bachelor’s degree in marine biology, animal science, biology, or a related field.” This field is still highly specialized and requires a least a bachelor’s degree, but potential employees could have received that degree in a few closely related academic disciplines, rather than a single one.
The beneficiaries of H-1B visas have recently seen their occupational qualifications come under increased scrutiny. Recent USCIS decisions held that H-1B applicants did not qualify because their occupations frequently accepted candidates for job positions from a variety of majors. Often, they use OOH occupational descriptions as further evidence of a supposed lack of specialization in academic discipline. Despite the fact that these fields are often specialized and closely related, USCIS has been pushing back and immigration lawyers and their clients have seen an increase in Requests for Evidence. Further denials by USCIS of applications have led some to take the matter to court.
Background on Relx, Inc. v. Baran (2019)
Judge Sullivan ruled that USCIS had acted arbitrarily and capriciously in its denial of an H-1B visa to the plaintiff. The beneficiary, Ms. Chatterjee, an Indian citizen had studied in the U.S. on a F-1 (student) visa. She had stayed for a year after graduation through the Optional Practical Training Program (OPT) to work with LexisNexis. The plaintiff applied for an H-1B visa for Ms. Chatterjee so that she might continue to work for them as a Data Analyst. Ms. Chatterjee earned a bachelor’s degree in Computer Science and Engineering from India. She additionally earned a master’s degree from the University of Cincinnati in Business Administration, with a focus on Business Analytics. She also worked in both the U.S. and India for multiple years in the same field.
USCIS responded with a “specialty occupation” RFE which asked for additional evidence in order to prove that Ms. Chatterjee’s occupation truly required specialized knowledge. The allegation was that the job was not specialized because a set of majors, rather than a single major might qualify someone to do the job. USCIS insisted on additional proof of specialty occupation despite the “mountain” evidence supplied by the employer.
USCIS Criteria for a Specialty Occupation
USCIS regulations have defined four independent criteria to determine whether a profession qualifies as a ‘specialty occupation’. The applicant must show only ONE of the following:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position;
- The degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, an employer may show that its particular position is so complex or unique that it can only be performed by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Response and Ruling
In response to the RFE, Ms. Chatterjee and LexisNexis submitted requested evidence for three out of the four independent criteria. Despite this, USCIS denied the petition. LexisNexis moved for reconsideration, but the government responded with their final decision to deny the petition for the same reasons as initially stated. Finally, the plaintiff filed suit against the defendant, asking that Ms. Chatterjee be granted H-1B status as the ruling was arbitrary, capricious and USCIS abused its discretion in denying the application. Judge Sullivan ruled in favor of the plaintiff, granting H-1B status to Ms. Chatterjee and stating clearly that “the agency’s decision was not ‘based on a consideration of the relevant factors’ and was ‘a clear error of judgement.'”
Details of Ruling
USCIS argued that “because different types of degrees appear to be acceptable for entry into [the] position….[the] position may never be specialized.” Judge Sullivan came down strongly against this argument. “This position,” he ruled, “is untenable. There is no requirement in the statute that only one type of degree be accepted for a position to be specialized.” Citing previous cases, such as Residential Fin. Corp v. U.S. Citizenship and Immigration Servs. and Tapis Int’l v. I.N.S. he went on to say that “nowhere in the statute does it require the degree to come solely from one particular academic discipline.” Ms. Chatterjee and LexisNexis submitted, in the words of Judge Sullivan “a mountain of evidence” which more than met the standard for a “ preponderance of evidence. ”
Even if the USCIS director has some doubt, “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not,’ the applicant or petitioner has satisfied the standard of proof.”
The Last Word
This ruling allows for a broader interpretation of qualifying criteria, increasing the likelihood that petitioners and beneficiaries will be able to qualify for H-1B status even in occupations that allow for multiple major as a minimum requirement.
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