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Challenging H-1B Denials in Federal Courts: Trends and Strategies
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/391836-article-how-to-challenge-gang-designations-in-asylum-cases-by-beau-baumann-and-stephen-yale-loehr#bio”>
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By Hun Lee and Stephen Yale-Loehr 1 *
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<div class=”post-content”>
<p align=”left”>
<strong>Introduction</strong>
</p>
<p align=”left”>
The denial rate for H-1B petitions has quadrupled over the past few years,
increasing from six percent in fiscal year (FY) 2015 to twenty-four percent
in FY 2018.
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[1]
</a>
After President Trump issued his “Buy American and Hire American” executive
order in April 2017,
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[2]
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U.S. Citizenship and Immigration Services (USCIS) has effectively raised
the standard of proof on H-1B petitions.
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[3]
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</p>
<p align=”left”>
USCIS has used several reasons to deny H-1B petitions, including claims
that the employer failed to show that a position qualifies as a “specialty
occupation,” impermissibly assigned employees to third-party worksites, or
failed to pay the required wage.
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[4]
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</p>
<p align=”left”>
Under USCIS’s recent approach, many H-1B petitioners are virtually faced
with a “preordained denial”
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[5]
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regardless of how well they respond to requests for evidence (RFEs) or
appeal their denial to the USCIS Administrative Appeals Office (AAO).
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[6]
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More and more H-1B petitioners have challenged the legality of H-1B denials
by filing complaints in federal court. Many have succeeded in getting their
H-1B denials reversed.
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[7]
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</p>
<p align=”left”>
We have compiled a spreadsheet of over fifty federal court cases brought
against USCIS in the last two years concerning H-1B denials. This article
presents the litigation trends we have observed and offers strategies for
immigration attorneys considering litigation to challenge an H-1B denial.
</p>
<p align=”left”>
The bottom line: sue!
</p>
<p align=”left”>
<strong></strong>
</p>
<p align=”left”>
<strong>Research Methodology and Results</strong>
</p>
<p align=”left”>
We used Bloomberg Law to identify H-1B complaints filed in federal court
between late 2017 and October 2019. We clicked on “Docket” under “Research
Tools,” and entered “H-1B” on the Keywords box. We limited the search to
federal district court dockets. We filtered the search results by selecting
“Complaint/Petition” from the dropdown list on the left under Filing Type.
We went through the search results and entered cases into a spreadsheet as
appropriate. The spreadsheet is available on Dropbox.
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[8]
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<strong></strong>
</p>
<p align=”left”>
As of mid-November 2019, the spreadsheet contains over fifty H-1B
complaints. Cases are sorted in alphabetical order by the plaintiff’s name.
Plaintiffs in green indicate pending cases (subscribed to weekly docket
updates). Those in orange indicate cases for which opinions were published;
those in dark red indicate cases for which complaints are unavailable due
to the party’s non-consent.
</p>
<p align=”left”>
The “Issue” column summarizes the legal issue raised by the plaintiffs,
with a citation to the relevant statutory or regulatory provision where
applicable. The issue also addresses the main grounds for the H-1B denial.
Where the case focused on specialty occupation, the petitioner’s position
was entered under the “Specialty Occupation” column. The “AAO Appeal?”
column notes whether plaintiffs filed an administrative appeal before suing
in federal court.
</p>
<p align=”left”>
The “USCIS Actions” column describes USCIS’s actions leading up to the
complaint, mostly noting whether USCIS had issued an RFE. The “Disposition”
column first notes whether the case is pending or closed, and then
summarizes the most recent development of the case. The “Comments” column
mentions whether there were any noteworthy procedures such as filing an
amended complaint, a motion for summary judgment, or a stay request.
</p>
<p align=”left”>
The spreadsheet also notes when a complaint is not accessible on Bloomberg.
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[9]
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Any description in red indicates something that is unique and not widely
observed in other cases.
</p>
<p align=”left”>
<strong>Trends and Patterns</strong>
</p>
<p align=”left”>
Below are some trends and patterns that we observed:
</p>
<p align=”left”>
<strong>Procedural Observations</strong>
</p>
<p align=”left”>
Most plaintiffs did not file an administrative appeal before suing in
federal court. Most plaintiffs had also received a RFE from USCIS before
their H-1B denial. The most common structure of the complaints followed
this order: (1) introduction; (2) jurisdiction; (3) venue; (4) standing;
(5) exhaustion of remedies; (6) parties; (7) legal background; (8) factual
allegations; (9) cause of action; and (10) request for relief. The
“Hyperlink to Docket” column on the spreadsheet provides a link to the
webpage where one can view activities in a docket and access the complaint.
</p>
<p align=”left”>
<strong></strong>
</p>
<p align=”left”>
<strong>Substantive Observations</strong>
</p>
<p align=”left”>
Out of the fifty-two cases, forty involved H-1B denials based on an alleged
failure to establish that the position was a “specialty occupation” under 8
C.F.R. § 214.2(h)(4)(iii)(A).
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[10]
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Grounds for denial in four other cases included an alleged failure to meet
the minimum wage requirement, being employed at a third-party worksite,
absence of an employer-employee relationship, failure to prove sufficient
amount of work to perform throughout the requested period, and failure to
maintain F-1 status before the H-1B petition. Three cases did not involve
H-1B denials. In those cases, the plaintiffs alleged respectively that
USCIS: failed to take action on a timely motion to reopen;
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[11]
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unlawfully approved the H-1B petition for a shorter duration than
warranted;
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[12]
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and failed to take action after the AAO’s reversal of the H-1B denial.
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[13]
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The remaining five cases could not be classified because the complaints
were inaccessible.
</p>
<p align=”left”>
When denying an H-1B petition for failure to establish that the position
qualified as a specialty occupation, USCIS generally grounds its denial on
all four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). In a number of
cases, USCIS interpreted “bachelor’s degree or higher in a specific <em>specialty</em>” (meaning “a range of educational degrees” that
encompass closely related fields of study) as requiring a “bachelor’s
degree or higher in a specific <em>field of study</em>” (meaning “a unitary
educational degree”). That effectively requires proving a single degree
giving employees the skills necessary to complete their duties. In other
cases, USCIS also concluded that a position does not “normally” require a
bachelor’s degree or higher, even when the Department of Labor’s (DOL’s)
Occupational Outlook Handbook (OOH) provides that “most” people in that
position have a bachelor’s degree or higher.
</p>
<p align=”left”>
Software engineer and data analyst positions were the most common positions
among the forty cases in this category, meaning that employers in the
information technology sector are particularly impacted by the recent rise
in H-1B denials.
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[14]
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</p>
<p align=”left”>
<strong>Selected Court Decisions</strong>
</p>
<p align=”left”>
Out of the fifty-two cases, twenty-three closed upon a voluntary dismissal,
mostly by plaintiffs. Some of the attorneys involved in these cases
informed us that USCIS reopened the cases in response to the lawsuit, after
which it issued a second RFE before reversing its denial and approving the
H-1B petition.
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[15]
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</p>
<p align=”left”>
In ten cases, the plaintiff filed a motion for summary judgment. Of those,
two were granted and three were denied. Summarized below are the decisions
in those cases. Two of the three cases that USCIS won were in district
courts in California.
</p>
<p>
<strong>Decisions for H-1B Plaintiffs</strong>
</p>
<p align=”left”>
<em>Raj & Co. v. USCIS</em>
:
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[16]
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The court held that USCIS abused its discretion by impermissibly narrowing
the plain language of the statute by requiring a single specifically
tailored and titled degree when determining that “although a baccalaureate
level of training is typical, the position of a Market Research Analyst is
an occupation that does not require a baccalaureate level of education in a
specific specialty as a normal, minimum for entry into the occupation.”
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[17]
</a>
The court pointed to evidence in the record that the proffered position
required a specialized degree in “market research” or an equivalent
technical degree, accompanied by relevant coursework in “statistics,
research methods, and marketing” as a minimum for entry. The court noted
that “while judicial review of agency decisions is highly deferential, it
is not without teeth. Agency action cannot survive judicial review where
the agency fails to ‘articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice
made.’”
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[18]
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In brief, the court did not agree with USCIS’s interpretation that a
specialty occupation requires some sort of an occupation-specific degree.
</p>
<p align=”left”>
<em>RELX, Inc. v. Baran</em>
:
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[19]
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The court held that USCIS acted arbitrarily and capriciously in determining
that the offered position of data analyst under the occupational title of
business intelligence analysts was not a specialty occupation solely on the
fact that OOH did not contain a detailed profile for the position and that
the use of DOL’s Occupational Information Network (O*NET) failed to
establish the occupation as a specialty occupation. The court pointed out
that the OOH provided the information needed to classify the position as a
specialty occupation and contained the O*NET cross reference, therefore
holding that USCIS’ denial was “factually inaccurate and not supported by
the record.”
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[20]
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Furthermore, in response to USCIS’ claim that the offered position was not
specialized because multiple fields of education appear to be acceptable
for entry into the position, the court stated that “there is no requirement
in the statute that only one type of degree be accepted for a position to
be specialized.”
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[21]
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Also critical to the court’s holding was the fact that USCIS reopened the
H-1B petition and issued a second RFE (essentially the same as its previous
RFE) shortly after the lawsuit was filed, after which USCIS filed a motion
to dismiss on grounds that it had reopened the case. The court concluded
that the government’s failure to set forth its reasons for reopening the
case and requesting the same evidence constituted arbitrary and capricious
action.
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[22]
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</p>
<p align=”left”>
<strong>Decisions Against H-1B Plaintiffs</strong>
</p>
<p align=”left”>
<em>Altimetrik Corp. v. USCIS</em>
:
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[23]
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The employer challenged five separate H-1B denials in the same lawsuit. The
court agreed with USCIS that the plaintiff was employing the beneficiary as
a systems analyst even though the position in the H-1B petition was for a
software developer. USCIS concluded that the duties matched those of a
systems analyst and thus referred to the OOH entry for systems analysts,
for which “a bachelor’s degree in a computer or information science field
is common, although not always a requirement.”
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[24]
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The court also agreed with USCIS that the duties were neither complex and
unique under the second criterion, nor specialized and complex under the
fourth criterion. Finally, the court agreed with USCIS that the plaintiff
failed to prove that the client entity required a bachelor’s degree for the
proffered position and that the beneficiary would perform actual duties
requiring the skills of someone with a bachelor’s degree or higher.
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[25]
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Critical to the court’s holding was the fact that the plaintiff failed to
prove continuing employment, as the beneficiary was assigned to a project
that had terminated, and that the description of a second project did not
align with the listed duties.
</p>
<p align=”left”>
<em>Innova Solutions, Inc. v. Baran</em>
:
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[26]
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The court agreed with USCIS that the plaintiff’s position of programming
analyst, falling under the OOH’s computer programmer classification, did
not satisfy the requirements of a specialty occupation. The court stated
that the first criterion hinges on whether a bachelor’s degree is required
for entry into the occupation. The court held that the plaintiff could not
rely on the OOH description for the computer programmer occupation, which
states that “most” computer programmers have a bachelor’s degree but that
“some” employers hire workers with an associate’s degree, because this
profile does not provide the normal minimum educational requirements for
the occupation. In other words, the court interpreted the OOH description
that “some” workers have an associate’s degree as showing that the position
does not “normally require a baccalaureate degree or higher,” implicitly
equating “normal” to mean “always.” The court also determined that the
plaintiff failed to satisfy the other three criteria.
</p>
<p align=”left”>
<em>Liu v. USCIS</em>
:
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[27]
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The court agreed with USCIS that the plaintiff’s position of meeting,
convention, or event planner is an occupation that does not require a
baccalaureate level of education in a specific specialty as a normal
minimum requirement. The court agreed with USCIS’s finding that because the
OOH states that “other common fields of study include communications,
business, and business management” but does not mention a particular course
work as an essential requirement, there was a rational basis for USCIS’s
conclusion that the position did not require a degree in a specific
specialty.
</p>
<p align=”left”>
Interestingly, before reaching this conclusion, the court acknowledged that
district courts are split on whether the OOH’s language that “some”
positions do not require a bachelor’s degree provides a rational connection
to finding that the position is not a specialty occupation. The court noted
that some courts interpret such OOH language as providing a rational
connection to the finding that the position does not “normally” require a
bachelor’s degree or its equivalent (i.e. “normally” would mean “always”),
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[28]
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whereas other courts interpret the OOH’s language that “most” have a
bachelor’s degree as failing to provide a rational connection to the
finding that the position does not “normally” require a bachelor’s degree.
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[29]
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The court also determined that the plaintiff failed to satisfy the other
three criteria.
</p>
<p align=”left”>
<strong>Strategies and Takeaways</strong>
</p>
<p align=”left”>
The following are some takeaways from these observations, which in turn can
serve as strategic guidance for attorneys with clients facing H-1B denials.
</p>
<p align=”left”>
Do not appeal to the AAO. The AAO generally will uphold USCIS’s denial, and
may issue a stronger denial decision than the original USCIS denial.
Instead, go straight to federal court.
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[30]
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<strong></strong>
</p>
<p align=”left”>
It is worth filing a complaint in federal district court alleging that
USCIS was arbitrary and capricious in denying the H-1B petition. The
lawsuit itself might trigger a reopening that leads to an H-1B approval.
Even if the case proceeds, a federal district court judge might be more
willing to reverse USCIS’s denial than an AAO adjudicator.
</p>
<p align=”left”>
Attorneys should file separate lawsuits for each denial, as cases vary in
the strength of their facts and the complexity of relevant issues.
Combining H-1B denials into a single lawsuit allows the court to focus more
on facts or issues that are less advantageous to the plaintiffs.
</p>
<p align=”left”>
When filing a motion for summary judgment, attorneys should raise all
challenges in the motion. In <em>Innova Solutions</em>, the court held that
USCIS was not arbitrary or capricious in finding that the plaintiff failed
to prove some criteria because the plaintiff did not challenge those issues
in its motion for summary judgment.
</p>
<p align=”left”>
When raising the issues, include strong evidence. For example, in <em>Innova Solutions</em>, the court held that letters written by attorneys
to establish a criterion for specialty occupation were insufficient. The
court seemingly agreed with USCIS that the plaintiff did not provide
“probative evidence of [its] requirements for the position such as job
postings or internal position descriptions for the proffered position.”
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[31]
</a>
</p>
<p align=”left”>
While USCIS may voluntarily reopen a case and grant an H-1B petition in
response to a lawsuit, recent cases that upheld H-1B denials could decrease
the likelihood of such resolutions. Courts seem to reach varying
conclusions on issues regarding specialty occupation, especially when it
comes to how probative the OOH is in determining educational requirements
for specialty occupation. However, the OOH includes a disclaimer that
the“[OOH] is not intended to, and should never, be used for any legal
purpose” and that “the information in the OOH should not be used to
determine if an applicant is qualified to enter a specific job in an
occupation.”
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[32]
</a>
</p>
<p align=”left”>
To better guide courts on how to interpret the OOH in examining H-1B
denials based on OOH language, attorneys could: (1) bring together a class
of employers and beneficiaries; (2) identify potentially favorable
circuits; and (3) file joint actions aimed to build case law that would
foreclose USCIS’s attempts to deny H-1B petitions based on its erroneous
interpretation of the OOH and the specialty occupation criteria.<a name=”Bookmark_para_4_11″></a><a name=”Bookmark_para_3_10″></a><a name=”Bookmark_LNHNREFclscc1_10″></a><a name=”Bookmark_para_6_10″></a><a name=”Bookmark_para_6_12″></a><a name=”Bookmark_I5WW9SFF28T45P0030000400″></a><a name=”Bookmark_para_12_12″></a><a name=”Case_Summary_13″></a> <a name=”Bookmark_para_1_2″></a><a name=”Bookmark_para_3_2″></a>
</p>
<div>
<br clear=”all”/>
<hr align=”left” size=”1″ width=”33%”/>
<div id=”ftn1″>
<p align=”left”>
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[1]
</a>
National Foundation for American Policy,
<em>
H-1B Denial Rates: Analysis of H-1B Data for First Three
Quarters of FY 2019
</em>
at 1 (Oct. 2019), https://nfap.com/wp-content
<br/>
/uploads/2019/10/H-1B-Denial-Rates-Analysis-of-FY-2019-Numbers.NFAP-Policy-Brief.October-2019.pdf. <strong></strong>
</p>
</div>
<div id=”ftn2″>
<p align=”left”>
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>
[2]
</a>
White House, Presidential Executive Order on Buy American and Hire
American (Apr. 18, 2017), https://
<br/>
http://www.whitehouse.gov/presidenti…hire-american/.
</p>
</div>
<div id=”ftn3″>
<p align=”left”>
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[3]
</a>
National Foundation for American Policy<em>, supra</em> note 1, at
2.
</p>
</div>
<div id=”ftn4″>
<p align=”left”>
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[4]
</a>
Cyrus D. Mehta & Eleyteria Diakopoulos,
<em>
Fearlessly Challenging H-1B Visa Denials Through Litigation
</em>
, The Insightful Immigration Blog (Mar. 31, 2018),
http://blog.cyrusmehta.com/2018/03/f…itigation.html.
</p>
</div>
<div id=”ftn5″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref5″
name=”_ftn5″
title=””
>
[5]
</a>
<em>Id</em>
.
</p>
</div>
<div id=”ftn6″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref6″
name=”_ftn6″
title=””
>
[6]
</a>
A USCIS spokesperson noted that only one percent of H-1B denials
are appealed to AAO, which sides with USCIS in most cases. <em>See</em> Sinduja Rangarajan,
<em>
The Trump Administration is Denying H-1B Visas at a Dazzling
Rate, But it’s Hit a Snag
</em>
, Mother Jones (Oct. 17, 2019),
https://www.motherjones.com/politics…-appeal-trump/.
</p>
</div>
<div id=”ftn7″>
<p>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref7″
name=”_ftn7″
title=””
>
[7]
</a>
<em>Id</em>
. <em>See also</em> Sinduja Rangarajan,
<em>
Trump Has Built a Wall of Bureaucracy to Keep Out the Very
Immigrants He Says He Wants
</em>
, Reveal (Dec. 2, 2019),
https://revealnews.org/article/trump…says-he-wants/.
</p>
</div>
<div id=”ftn8″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref8″
name=”_ftn8″
title=””
>
[8]
</a>
https://www.dropbox.com/s/9i8mgjeddn…heet.xlsx?dl=0.
Sinduja Rangarajan of Mother Jones shared with us a similar
database of H-1B-related lawsuits against USCIS that she compiled
in collaboration with Reveal. Sinduja Rangarajan,
<em>
How I Tracked an Explosion in Lawsuits Against Trump’s
Immigration Policies
</em>
, Mother Jones (Dec. 2, 2019),
https://www.motherjones.com/politics…e-methodology/.
Forty-two of our cases appear in their database, which also
contains some cases not included in our database. Ms. Rangajaran’s
database is at
https://docs.google.com/spreadsheets…#gid=512816301.
</p>
</div>
<div id=”ftn9″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref9″
name=”_ftn9″
title=””
>
[9]
</a>
Any complaint unavailable on Bloomberg is also unavailable on
PACER.
</p>
</div>
<div id=”ftn10″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref10″
name=”_ftn10″
title=””
>
[10]
</a>
For a general discussion of the regulatory requirements to
establish that a position is a “specialty occupation,” see Charles
Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada,
Immigration Law and Procedure § 20.08[3] (rev. ed. 2019).
</p>
</div>
<div id=”ftn11″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref11″
name=”_ftn11″
title=””
>
[11]
</a>
D’Aquila Advisors, LLC v. USCIS.
</p>
</div>
<div id=”ftn12″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref12″
name=”_ftn12″
title=””
>
[12]
</a>
ITserve Alliance, Inc. v. USCIS.
</p>
</div>
<div id=”ftn13″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref13″
name=”_ftn13″
title=””
>
[13]
</a>
McKinsey & Company, Inc. v. USCIS.
</p>
</div>
<div id=”ftn14″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref14″
name=”_ftn14″
title=””
>
[14]
</a>
In FY 2018, USCIS denied fifty-three percent of H-1B petitions of
six information technology services companies for initial
employment. In contrast, in FY 2018 USCIS denied only about one
percent of H-1B petitions filed by six major U.S. tech companies.
Stuart Anderson,
<em>
IT Services Companies and Clients Bear Brunt of H-1B Crackdown
</em>
, Forbes (Feb. 25, 2019),
https://www.forbes.com/sites/stuarta…/#79c175815415.
</p>
</div>
<div id=”ftn15″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref15″
name=”_ftn15″
title=””
>
[15]
</a>
The attorney for Everymarket emailed us that USCIS reopened and
approved the company’s H-1B petition a few weeks after Everymarket
filed its complaint. The attorney for Populus Group, LLC also noted
that after the company sued, USCIS reopened its case and issued a
second RFE. Similarly, the attorney for Preferred Population Health
Management, LLC noted that USCIS asked for an extension after
complaint was filed, issued a harmless RFE, and then approved the
H-1B petition. Other immigration attorneys have observed that many
times, USCIS reopens the denial and approves the case or issues
another RFE after plaintiffs file a complaint in federal court. <em>See</em> Cyrus D. Mehta & Gianna Boccanfuso,
<em>
Denial of H-1B Cases: The Occupational Outlook Handbook is Not
the Holy Grail
</em>
, The Insightful Immigration Blog (Oct. 15, 2019),
http://blog.cyrusmehta.com/2019/10/d…oly-grail.html. <em> </em>
</p>
</div>
<div id=”ftn16″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref16″
name=”_ftn16″
title=””
>
[16]
</a>
Raj & Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015).
</p>
</div>
<div id=”ftn17″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref17″
name=”_ftn17″
title=””
>
[17]
</a>
<em>Id.</em>
at 1247.
</p>
</div>
<div id=”ftn18″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref18″
name=”_ftn18″
title=””
>
[18]
</a>
<em>Id.</em>
at 1248.
</p>
</div>
<div id=”ftn19″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref19″
name=”_ftn19″
title=””
>
[19]
</a>
RELX, Inc. v. Baran, 2019 U.S. Dist. LEXIS 130286 (D.D.C. Aug. 5,
2019).
</p>
</div>
<div id=”ftn20″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref20″
name=”_ftn20″
title=””
>
[20]
</a>
<em>Id</em>
. at *27.
</p>
</div>
<div id=”ftn21″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref21″
name=”_ftn21″
title=””
>
[21]
</a>
<em>Id</em>
. at *28.
</p>
</div>
<div id=”ftn22″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref22″
name=”_ftn22″
title=””
>
[22]
</a>
<em>Id</em>
. at *13–23.
</p>
</div>
<div id=”ftn23″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref23″
name=”_ftn23″
title=””
>
[23]
</a>
Altimetrik Corp. v. USCIS, 2019 U.S. Dist. LEXIS 168192 (E.D. Mich.
Sept. 30, 2019).
</p>
</div>
<div id=”ftn24″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref24″
name=”_ftn24″
title=””
>
[24]
</a>
Some attorneys comment that USCIS strategically switches
occupations to apply more favorable educational requirements to
find that there is no specialty occupation.
</p>
</div>
<div id=”ftn25″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref25″
name=”_ftn25″
title=””
>
[25]
</a>
In <em>Defensor v. Meissner</em>, 201 F.3d 384 (5th Cir. 2000), the
Fifth Circuit considered the client entity as the employer rather
than the petitioner. USCIS uses <em>Defensor</em> to reject claims
by employers that they hire others with the same educational
credentials, even where they can show that they are the actual
employers who control the employment. This is problematic because
an H-1B petition cannot be filed by the petitioning entity if the
client is the actual employer and not the petitioner.
</p>
</div>
<div id=”ftn26″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref26″
name=”_ftn26″
title=””
>
[26]
</a>
Innova Solutions, Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790 (N.D.
Cal. Aug. 8, 2019). This case concerned the H-1B denial of Mr.
Dodda, one of the three beneficiaries at issue in the action
brought by Innova. In an earlier decision— <em>Innova Solutions Inc. v. Baran</em>, 338 F. Supp. 3d 1009 (N.D.
Cal. 2018)—the court adjudicated the claims regarding Mr.
Gogumalla, whose H-1B denial was upheld when the court found that
the OOH does not require a degree <em>only</em> in a specific
specialty for the beneficiary’s position.
</p>
<p align=”left”>
The most recent H-1B decision involving Innova was <em>Innova Solutions, Inc. v. Baran</em>, 2019 U.S. Dist. LEXIS
193297 (C.D. Cal. Nov. 5, 2019), which involved a different issue.
The beneficiary, Mr. Alagarsamy, was not one of the three
beneficiaries in the original action, and USCIS denied his H-1B
petition based on a lack of an on-site employer-employee
relationship. The court reversed USCIS’s decision, finding that
USCIS based its denial on the argument that Innova’s website failed
to prove that Innova created its own products in-house. The court
held that USCIS disregarded evidence submitted by Innova that could
establish that there was an on-site employer-employee relationship.
</p>
</div>
<div id=”ftn27″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref27″
name=”_ftn27″
title=””
>
[27]
</a>
Liu v. Baran, 2018 U.S. Dist. LEXIS 222796 (C.D. Cal. Dec. 21,
2018).
</p>
</div>
<div id=”ftn28″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref28″
name=”_ftn28″
title=””
>
[28]
</a>
<em>See, e.g.</em>
,<em> </em>Ajit Healthcare Inc. v. United States Dep’t of Homeland
Sec., 2014 U.S. Dist. LEXIS 186258, at *4 (C.D. Cal. Feb. 7, 2014).
</p>
</div>
<div id=”ftn29″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref29″
name=”_ftn29″
title=””
>
[29]
</a>
<em>See, e.g.</em>
, Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267
(S.D.N.Y. 2017).
</p>
</div>
<div id=”ftn30″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref30″
name=”_ftn30″
title=””
>
[30]
</a>
<em>See generally</em>
Diane M. Butler, Leslie K. Dellon, David Isaacson & Stephen
Yale-Loehr, <em>Post-Denial Strategies: How to Get from “No” to “Yes,”</em> 24
Bender’s Immigr. Bull. 1327, 1333 (Nov. 1, 2019).
</p>
</div>
<div id=”ftn31″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref31″
name=”_ftn31″
title=””
>
[31]
</a>
<em>Innova Solutions, Inc. v. USCIS</em>
, 2019 U.S. Dist. LEXIS 134790 at *27.
</p>
</div>
<div id=”ftn32″>
<p align=”left”>
<a
href=”file:///C:/Users/ILW.COM/Desktop/H-1B%20litigation%20article%20for%20ilw.com.doc#_ftnref32″
name=”_ftn32″
title=””
>
[32]
</a>
Bureau of Labor Statistics, U.S. Dep’t of Labor, <em>Occupational Outlook Handbook</em>, Disclaimer,
https://www.bls.gov/ooh/about/disclaimer.htm (last visited Nov. 15,
2019).
</p>
</div>
</div>
</div>
</div>
<div>
<div id=”ftn61″>
</div>
</div>
<p>Reprinted with permission.</p>
</span>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
<!–AUTHOR BIO START–>
<a href=”mailto:hl2346@cornell.edu”>Hun Lee </a> graduated from Cornell Law School.
</p>
<a href=”mailto:swy1@cornell.edu”>Stephen Yale-Loehr</a> is co-author of Immigration Law and Procedure, the leading twenty-one-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School and of counsel at Miller Mayer LLP in Ithaca, New York.
</p>
<!–END AUTHOR BIO–>
<p><hr/>
<div class=”ilwFinePrint”>The opinions expressed in this article do not necessarily reflect the opinion of <span itemprop=”publisher” itemscope itemtype=”http://schema.org/Organization”>
<span itemprop=”name”>ILW.COM</span></span>.</div></p>
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