Legal Blog

U.S. Businesses Push Back Against USCIS H-1B Petition Denials

The demand for educated workers disproportionately exceeds the number of qualified workers in the U.S. To help relieve this disparity, Congress enacted the H-1B visa category for employers to hire temporary foreign workers in a “specialty occupation.” This specialty occupation requires the application of a body of specialized knowledge and a bachelor’s degree or higher (or its equivalent in work experience). It is also required that the degree be in the specific specialty of the occupation.

The U.S. Citizenship and Immigration Services (USCIS), has increasingly denied H-1B visa petitions. This is happening to employers whose petitions had met those requirements previously and had their petitions approved. The American Immigration Council, a nonprofit that helps to shape a fair approach to immigration through research, policy analysis and litigation ,[1]  has decided to push back and fight for fair H-1B adjudications. It is representing an employer in the case, Entegris Professional Solutions v. United States Citizenship an d Immigration Services, et al.[2] American Immigration Lawyers Association (AILA) members, Debra A. Schneider and colleague Matthew Webster of Fedrickson & Byron, P.A., have teamed up with the American Immigration Council to assist on this case. They have filed a lawsuit on behalf of Entegris Professional Solutions, Inc. (EPS) against the USCIS in December 2018.

The plaintiff (employer), is suing the USCIS for an unlawful denial in an H-1B petition with extension on H-1B status. The plaintiff argues that the USCIS has disregarded the provided evidence that a “specific specialty” advanced degree is required by the employer due to the complexities and nature of the job. The USCIS had denied their case on the basis that the employer did not meet any of the specialty occupation requirements. This premise has become more common with USCIS adjudications. The plaintiff wished to renew the H-1B status of a valued employee whose H-1B status with the company had been approved three time in previous years. The Plaintiff promoted the employee to a new B1 Business Analyst position within the same occupation, requiring even greater responsibilities. Plaintiff argues that this job meets all of the requirements of a specialty occupation as it had in previous filings.

The American Immigration Council encourages that business immigration attorneys challenge the USCIS’ hardened approach to H-1B adjudications by filing law suits on unlawful denials.