A U.S. employer fights back against the unrelenting scrutiny on the H-1B visa classification

On April 4th, a U.S. employer challenged the United States Citizenship and Immigration Services (USCIS) in an H-1B nonimmigrant petition denial, claiming the decision was arbitrary and unlawful. The H-1B petition with a request for a change of status and extension of stay was denied by USCIS on the basis that it did not fit within the scope of a “specialty occupation,” a requirement for H-1B visas.

The H-1B visa classification allows for highly skilled and educated workers from foreign countries to work for U.S. employers in “specialty occupations.” Specialty occupations require the application of specialized knowledge, for which a bachelor’s degree or higher is required.

The Complaint 

The U.S. employer (petitioner) PS Lifestyle LLC, filed a complaint against USCIS and L. Francis Cissna, the Director of USCIS, when their H-1B application for an employee (beneficiary) was denied. The petitioner submitted a detailed job description, including specific duties and percentages of time spent on projects as well as supportive evidence demonstrating that the job was a specialty occupation – evidence that would provide a strong H-1B application. The job description consisted of gathering, analyzing, and reporting on sales and marketing data. The H-1B beneficiary would be responsible for producing financial and market intelligence for the company and developing models for identifying patterns and trends – all responsibilities that require a master’s degree in Business Administration or Finance or related professional experience.[1]

Both in the initial petition and the response to the Request for Evidence (RFE), the petitioner provided substantial evidence demonstrating that the nature of the specific job duties were complex and specialized enough such that a higher degree in the specific field was necessary. However, the USCIS’s denial disregarded the job duties, the complexity of those duties, and the correlation between the job responsibilities and the requirement for the employee to hold a master’s degree in the specific field. This case is reflective of the growing challenges that many U.S. employers face when there is no consensus as to the degree requirements when new occupations emerge. USCIS focuses on the currently lacking, published standards – strictly requiring the employee to hold a bachelor’s or higher degree in a specific specialty – rather than the complexity and specialized nature of the job duties.

The American Immigration Council, a non-profit organization and advocacy group, is the co-council on the case. They are encouraging immigration lawyers to challenge unlawful H-1B denials and file a suit against USCIS.[2]

[1]http://americanimmigrationcouncil.org/sites/default/files/litigation_documents/ps_lifestyle_llc_v_uscis_complaint.pdf

[2] http://americanimmigrationcouncil.org/litigation/us-employer-challenges-uscis-not-specialty-occupation-h1b-petition-denial-disregarding