U.S. Employer Challenges USCIS “Not a Specialty Occupation” H-1B Petition Denial Disregarding Employer’s Evidence of Specific Specialty Degree Requirement

U.S. Employer Challenges USCIS “Not a Specialty Occupation” H-1B Petition Denial Disregarding Employer’s Evidence of Specific Specialty Degree Requirement

PS Lifestyle LLC  v. USCIS, et al., Case 1:19-cv-0096 (D.D.C., filed Apr. 4, 2019)

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.

This case is representative of the difficulties employers encounter when new occupations emerge to fill business needs which require at least a bachelor’s degree, but no consensus exists as to the degree requirement. U.S. Citizenship and Immigration Services (USCIS) fixates on the lack of published standards and disregards substantial evidence that an employer requires a bachelor’s or higher degree in a “specific specialty” because of the complexity and specialized nature of the job duties.

The plaintiff H-1B employer provides amenity services to seniors, their families and their senior communities, including the only online platform where families and friends can connect with seniors by purchasing salon and spa services, pro-aging products, and personalized gift certificates. Through the petition, it sought H-1B status for a highly-educated and skilled foreign national to work as Director of Business Development, a position most closely aligned with the Business Intelligence Analysts occupation.

The Council is co-counsel, with Brian J. Halliday of Ritter Halliday, LLP, 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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