H-1B Denials overturned in Federal Court
The H-1B visa category is available to foreigners who perform services in a specialty occupation. The general requirements for these applications are twofold: (1) The proposed position with the U.S. company must be a specialty occupation (e.g. it requires a Bachelor’s degree or higher) ; and (2) The applicant must possess the requisite education, training, certificates, or work experience necessary to perform the specialty occupation.
Two recent federal cases illustrate the complexity of this category. In Warren Chiropractic & Rehab Clinic, P.C., v. USCIS, a federal judge overturned a USCIS denial where the applicant sought H-1B status as a Medical and Health Services Manager. The Judge ruled the agency was wrong in finding that a “medical and health services manager” position did not qualify as a specialty occupation. The court also found that USCIS was wrong to classify the beneficiary’s job as an “administrative services manager.”
Earlier this month, a different federal judge overturned a USCIS denial where the applicant applied for H-1B status as a Marketing Analyst (Raj and Co. v. USCIS). USCIS argued this was not a specialty occupation because it did not require a specialized bachelor’s degree, and did not meet their other regulatory criteria. The judge disagreed with USCIS, stating that “the patently specialized nature of the position sets it apart from those that merely require a generic degree.” The case was remanded to USCIS with orders to grant the H-1B petition.
Due to the complex nature of this category, it is not uncommon for initial petitions to result in denial due to lack of supporting evidence or improper job description. For further information, please contact PricewaterhouseCoopers Immigration Law LLP.