H-1b denial – Hammond Neal Moore, LLC

H-1b Denial Upheld in Federal Court

By Mike Hammond|2019-07-18T01:06:20+00:00July 18th, 2019|Categories: Visas - H-1b, L-1, E, O, TN|Tags: H-1b denial, Sagarwala, specialty ocucpation|

Earlier this week, a Federal Judge in Washington D.C. upheld a USCIS decision denying an H-1b transfer petition for a QA Analyst under the theory that the position was not a specialty occupation. This decision is a major win for the Trump administration as the Court deferred to the Agency's interpretation of the definition of a specialty occupation. The Court did not address the single degree issue. There are a number of facts that are relevant when viewing this decision. The petition was filed under the 15-1199.00 SOC classification as a Quality Assurance Engineer/Tester, a category that lacks DOL support for a specialty occupation finding. Further, the petitioner in its petition declared that many different educational fields would be suitable for such a position and named such disparate fields as sciences, engineering, and mathematics. The petition even stated that the position would accept a "wide range of specialties" ! Its as if this petition was drafted with an eye toward a denial or a failure to recognize the standards for an H-1b that have been the norm for the past 2+ years. Its unfortunate that this case was brought in front of a Federal Judge with these facts. As the old adage goes, bad facts, make bad law.

USCIS sued over H-1b denial !

Finally, a software company has filed suit against the USCIS in Federal Court over a denial issued against an H-1b employee. The employee was a systems analyst and had been working for the employer in H-1b status for over 6 years having received multiple approvals in the past. In the denial, the USCIS ruled that the position of a systems analyst was not a specialty occupation using its "single degree" reasoning and that the employer did not established an employer-employee relationship. We will keep people updated as developments occur.