A Small Win for H-1B Filers

sv.jpg

A recent case before a U.S. District Court illustrates the restrictiveness of USCIS regulations and its interpretation of statutes. Nonetheless, the judge reversed an H-1B denial, thereby validating as effective a few methods of supporting H-1B petitions. The judge in Washington State ordered USCIS to reverse its decision in denying an H-1B visa to a South Korean national wishing to work as a healthcare manager at an acupuncture and Eastern Medicine clinic in Lynwood, WA.

Upon review of the plaintiff’s petition, the agency denied it on two grounds: that the position did not qualify as an H-1B-worthy “specialty occupation”–and that the foreign national (FN) was not qualified for it, even if it were. Regardless of the evidence for or against this point, the core of this argument appears to trip over itself, because few occupations are both too general for H-1B workers while also excluding most working adults from qualifying. One would think that only one of these claims would be made. Either way, the court examined and rejected the government’s position on both of these counts.

It its denial of the petition, USCIS acknowledged that “most” of those who occupy the position of healthcare manager do have a bachelor’s degree, but some apparently don’t. Specifically, the agency held that a degree “isn’t a requirement to enter the field.” The response continued by saying that for those employers that do require a degree, it need not be in anything specific. USCIS seemed to be saying that a specialty occupation needs a special degree as a requirement for the job. The plaintiffs had argued that the job has special requirements that are fulfilled by the FN beneficiary’s credentials. USCIS instead decided that the job did not have those requirements and that the beneficiary did not have those credentials.

Before getting into the court’s analysis, it is worth taking note that the above sheds some light on what the USCIS officer reviewing the case may have been thinking when issuing the denial. It seems that when considering the nature of the occupation, it somehow came to the opinion that it was only considering a petition to fill an entry level position in healthcare management rather than reviewing one to fill the position of “healthcare manager.” This is an important distinction.

As is usual when the agency isn’t immediately impressed by a petition, a Request for Evidence was sent to the petitioning business. The specific evidence requested included the job description and position requirements, what makes it a “specialty occupation,” the nature of the specific duties it entails, and information regarding the foreign national beneficiary’s education and qualifications. Looking at the evidence that the government requested (along with their reasons for the denial), it seems likely that it did not take the business seriously. Our view is that the government thought the position was created for the purpose importing a specific person.

This of course would be a clear misuse of the H-1B program. At the time when the case was submitted, the agency had reason to be suspicious of many H-1B petitions. Due to the partial economic recovery, there was a spike in the demand for employment-based immigration. This increased the amount of time many immigrants had to wait until being able to work for their U.S. employers. Because of this, the H-1B visa was increasingly viewed as a way of side-stepping the waiting period. However, the visa exists only to supplement the U.S. work force with foreign specialized skills. USCIS seems to feel that the program is ripe for abuse–and that its mission is to prevent this.

It doesn’t matter that there is no direct evidence of such abuse in this case. A healthcare manager at an acupuncture clinic doesn’t perfectly fit the prevailing notion of what an H-1B position should look like. So, when the business responded with evidence of the specialty nature of the position and the credentials of the FN, the government appears to have grasped at straws looking for reasons to deny the petition. In issuing his reversal of the denial, the judge said that the agency plainly ignored evidence that a reasonable person would have seen as verifying the FN’s credentials. The business had a Duquesne University professor verify that the FN’s experience qualified her for the position–and provided certifications of the professor’s competency in doing so. These certifications are what the judge found the government to have blatantly ignored.

The judge also found that USCIS’ restrictiveness in its reading of regulations, if valid, would have unacceptably limited the amount of qualifying specialty positions. While this is a win for potential H-1B workers, there are two things that limit the intensity of our celebration. The first is that it isn’t always economical to challenge USCIS in court like this, so many people may be victims of wrongful denials without means of recourse. The second problem is the H-1B cap. Until the cap is raised, simply filing a qualifying H-1B petition is no guarantee for a visa. It only guarantees entry into the H-1B lottery system that is now in use. Nonetheless, the fact that the plaintiffs won in this case will create a precedent that may save some FNs from experiencing an H-1B denial.