Supreme Court Justice William O. Douglas once said, “Common sense often makes good law.”

It appears that U.S. Citizenship and Immigration Services (USCIS) did not get the message. Common sense has all but disappeared in the context of immigration law, and has been replaced by bureaucracy, xenophobia, and a general culture of “No.”

In the midst of this absurdity, AILA and the American Immigration Council (the Council) are ready for battle.  Late last week, my law firm joined AILA, the Council, and the law firm of Van Der Hout, LLP and Kuck and Baxter Immigration LLC., to file a nationwide class action to restore common sense to the adjudication of H-1B petitions.  The lawsuit challenges USCIS’ pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by businesses in the United States.

The practice we are battling is the unlawful adjudication practice USCIS uses in determining whether a market research analyst job qualifies as a “specialty occupation,” and the agency’s misinterpretation of the Occupational Outlook Handbook (OOH)—a publication of the U.S. Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States’ job market.  As demonstrated in our complaint, MadKudu Inc. v. USCIS 5:20-cv-02653-SVK (N.D. Cal. Apr. 16, 2020), USCIS erroneously denies H-1B petitions for market research analysts by concluding that the OOH does not establish that the occupation is a specialty occupation.

The denials generally follow this pattern:  many companies, like MadKudu, recruit foreign nationals with various qualified bachelor’s degrees for positions as Market Research Analysts.  Once it finds a proto-typical recruit with a qualifying degree, the company sponsors the recruit for employment on an H-1B visa. A position falls within a specialty occupation if “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). In determining whether a particular job is a specialty occupation, USCIS states that it relies on the OOH as an authoritative source to determine whether this regulatory requirement is satisfied.  Significantly, the OOH says that a bachelor’s degree is “typically” required for a position as a Market Research Analyst. Ipso facto, this should end the matter and Madkudu should have the ability to employ the sponsored foreign national on an H-1B visa as a Market Research Analyst. However, even though a degree is normally required, if a particular employer would accept various degrees to qualify for the job, USCIS concludes (erroneously) that the job must not be specialized enough.  In doing so, USCIS ignores the plain language of the OOH and treats “typically” and “normally” as antonyms. This represents an affront to basic English grammar and common sense, but is also contrary to what is required in the regulations.

Our clients should no longer stand by and let USCIS ignore the law and common sense by engaging in results-oriented decisions. USCIS has engaged in a pattern and practice of ignoring substantial evidence that clearly establishes that market research analysts are a specialty occupation. Just because one can become a market research analyst through a variety of undergraduate pursuits does not render market research analysts non-professional.

Immigration attorneys have developed the necessary skills to fight for immigrant rights on several levels–through the education and empowerment of our members, through cooperative liaison with our agencies, through proactive advocacy with our coalition partners and Congress, and, when necessary, through aggressive litigation. AILA and our partners will continue to fight alongside our members to restore common sense to the immigration law.

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AILA members, there’s an upcoming webinar on May 1 you might find of interest on H-1B visas – see the Agora page for more info.