Federal judge Rudolph Contreras issued a ruling on three new court cases that USCIS has unlawfully denied H-1B petitions by improperly limiting the definition of a specialty occupation. If your employer wants to sponsor you for an H-1B visa, the job position must be a specialty occupation, meaning, that it requires a theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. To learn more about specialty occupation, please click here.
Under the current administration, H-1B approval rates have declined from 92% to 75%. A majority of the reason for denial was due to USCIS instructing adjudicating to adopt a new, narrow interpretation of what qualifies as an H-1B “specialty occupation”. USCIS’ instructions stated, in short, that unless the Department of Labor (DOL) Occupational Outlook Handbook states that everyone who holds a particular job has a bachelor’s degree, perhaps even a bachelor’s degree in a specific specialty, USCIS adjudicators should deny the H-1B petition on the grounds the position does not qualify as a specialty occupation.
In the ruling against USCIS, the judge noted the DOL Occupational Outlook Handbook states that a bachelor’s degree in computer or information science is “common, although not always a requirement.” He wrote that “common” should be interpreted as “normally,” adding that even if “‘some firms, hire analysts with general business or liberal arts degrees does not prove – or even suggest – that a specialty degree is not ‘normally’ required.” He added, “Again, the regulatory criterion is not whether such a degree is always required, or whether some employers do not require it,” as USCIS claimed. “The fact that such a degree is not ‘always’ required – or that ‘some firms’ hire analysts with general business or liberal arts degrees – does not suggest a specialty degree is not ‘normally’ required.”
The judge stated that the regulations do not say that a degree must always be required, yet the agency appears to have substituted the word ‘always’ for the word ‘normally.’ This is a misinterpretation and misapplication of the law.
If you were not selected in this year’s H-1B visa lottery, please read our blog post to find out whether you could apply for some other visa.
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