U.S. Employer Challenges USCIS "Not a Specialty Occupation" H-1B Petition Denial of Market Research Analyst Job

U.S. Employer Challenges USCIS "Not a Specialty Occupation" H-1B Petition Denial of Market Research Analyst Job

Performance Management Consulting,  LLC  v. USCIS, et al., Case 1:19-cv-01425 (D.D.C., filed May 16, 2019) 

STATUS:
Closed

Demand for educated professionals often exceeds the supply of qualified workers. To assist in filling this gap, Congress enacted the H-1B nonimmigrant visa classification, which allows highly educated foreign workers to temporarily work within a "specialty occupation" in the United States. 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.

Increasingly, USCIS is denying H-1B petitions for alleged lack of a specialty occupation. In this case, the plaintiff H-1B employer provides performance-related services to law firms. It sought H-1B status for a highly-educated and skilled foreign national to work as a Process Analyst, a job in the Market Research Analyst occupation.

In denying the petition, USCIS disregarded substantial evidence that the employer requires a bachelor's or higher degree in a "specific specialty" because of the complexity and specialized nature of the job duties.

USCIS reopened and approved the H-1B petition before filing an answer in the case. Since the plaintiff received the relief it wanted, it filed a notice dismissing the suit.

The Council  served as co-counsel, with Jeremy S. Zollinger of Zollinger Immigration, ALC, under the Council's program to encourage business immigration attorneys to file suit to challenge unlawful agency denials of employment-based petitions.

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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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