Don’t we always want to root for the underdog?
In a time of ‘brutality’ against companies by USCIS, two recent court decisions have the potential to provide relief to many companies and H-1B employees hurt by recent USCIS adjudications.
These decisions are:
and
These decisions were issued March 5, 2020 and March 10, 2020 respectively, and both addressed key reasons USCIS used to deny H-1B petitions.
What is a Specialty Occupation?
The USCIS has constantly changed what it defines as a Specialty Occupation and what type of degree is required for the position.
In InspectionXpert Corp. v. Kenneth T. Cuccinelli, Acting Director of the United States Citizenship and Immigration Services,USCIS denied the H-1B application because the position did not require a degree in a specific subspecialty. In this case, the employee had a degree in Mechanical Engineering, which the USCIS said was not related to the specific field.
U.S. Magistrate Judge L. Patrick Auld stated in his decision that USCIS’s interpretation of the provision requiring a degree in one singular subspecialtyfor a position is not one officially held by the Agency, but instead is one held “ad hoc”, or only when it is convenient to be used to deny an H-1B petition.
Judge Auld said it was unreasonable for the Service to decide that a general engineering requirement is too generalized for a position. We agree with the Judge.
Hopefully, this decision will limit the ability of USCIS adjudicators to deny H-1Bs when a specialty occupation requires multiple different types of degrees and not just one specific degree in a subspecialty.
How to define the Employer-Employee relationship?
In ITServe Alliance v. L. Francis Cissna, presiding U.S. District Judge Rosemary M. Collyer invalidated the key USCIS memos and policies that have caused skyrocketing H-1B denial rates and harsher treatment for information technology (IT) services companies employing foreign-born computer professionals.
USCIS has been denying cases by stating that the petitioner did not have actualcontrol of the employee, especially when the employee was contracted out to work at a third-party site. Judge Collyer stated in her opinion that these current USCIS practices and interpretations are inconsistent with the immigration regulations currently in place and therefore, cannot be enforced.
Per this decision, employers only have to prove one of the following: that it may hire, pay, fire, supervise or otherwise control the work of the employee.
How do we deal with the “Itinerary Rule” and the Short Approval Periods?
Doesn’t it bother you when the USCIS approves an H-1B for only a month or so? This means a company has to quickly file another H-1B application to extend the employee’s status, spending even more money and effort. This is an unfortunate situation, but many people have had similar experiences.
As stated by Judge Collyer, USCIS’s practices of requiring companies to provide proof of work assignments, through evidence such as MSAs, SOWs, and middle vendor and end client letters, showing that a project spans the entire the duration of the requested visa period, is not supported by the statutes or regulations put in place.
Thus, Judge Collyer invalidated this practice in this decision, stating that Congress did not tell USCIS that employers must list out all work/contracts that will be performed throughout the requested H-1B visa period in order to have fulfilled the requirement to prove “sufficient specialty occupation work available throughout the requested H1-B visa period.” Therefore, these short approval periods and denials because based on SOW/MSA validity dates, or end-client letters, have been issued in error.
Based on this decision, the employer only needs to show proof of non-speculative work assignments, but not necessarily for the entire requested duration of the H-1B visa. Now, USCIS can grant an approval for less than the 3 years, but must provide reasoning, “in whole or in part”, for any denials.
How will this affect H-1B filings moving forward?
The USCIS can now appeal these decisions to the Supreme Court. However, it is unclear if they will choose to pursue an appeal. In the meantime, keep the following in mind:
These two Court decisions are a step in the right direction, one that will hopefully restore some normalcy to the H-1B application and adjudication process. However, our work isn’t over yet, the fight must go on against bad USCIS case decisions.