Challenging USCIS “Not a Specialty Occupation” H-1B Petition Denial

Challenging USCIS “Not a Specialty Occupation” H-1B Petition Denial

Shandilya, et al. v. United States Citizenship and Immigration Services, et alCase 1:18-cv-02382

STATUS:
Pending

Demand for educated workers in the professions often outweighs the supply of qualified workers. To assist in filling this gap, Congress enacted the H-1B nonimmigrant visa classification for employers with jobs in a “specialty occupation.” A “specialty occupation” requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s or higher degree in the specific specialty (or its equivalent) to enter the occupation in the United States. Agency regulations provide criteria—any one of which is sufficient—for a petitioning employer to show that its job is in a specialty occupation.

In recent years, United States Citizenship and Immigration Services (USCIS) has been denying H-1B petitions for jobs that the agency previously approved as being in a specialty occupation. This case is representative. USCIS misreads a description of educational requirements in the Department of Labor’s Occupational Outlook Handbook (OOH) for the relevant occupation and, based on this, erroneously concludes that a bachelor’s degree in a specific specialty is not normally required.

The plaintiffs, a large construction company and its long-time, valued employee, challenged the denial of an H-1B petition that included an extension of the employee’s H-1B status. The company had promoted the employee to an Assistant Project Manager. Plaintiffs argue that the job meets one or more of the criteria for a specialty occupation and that USCIS unlawfully denied the petition and extension by misreading the OOH.

The Council is co-counsel, with Deborah Notkin and Troy Palmer of Barst Mukamal & Kleiner LLP, under the Council’s program to encourage business immigration attorneys to file suit to challenge unlawful agency denials of employment-based petitions. This suit challenges the policy changes that restrict employers’ lawful use of H-1B workers.

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  • August 20, 2018
    This Practice Advisory has information practitioners need to assess whether filing suit in federal court is the right option for challenging an employment-based petition denial.

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