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FINDING IN FAVOR OF EMPLOYER, FEDERAL COURT ISSUES STRONG REBUKE AGAINST USCIS BECAUSE DENIAL OF DATA ANALYST’S H-1B PETITION WAS ARBITRARY AND CAPRICIOUS

            In a major win for H-1B employers nationwide, a federal judge for the U.S. District Court for the District of Columbia issued a strong rebuke against U.S. Citizenship and Immigration Services’ (USCIS) common practice of arbitrarily denying H-1B petitions for specialty occupations. Specifically, on August 5, 2019, in LexisNexis USA v. USCIS, 2019 WL 3557699 (D.D.C. Aug. 5, 2019), Judge Emmet G. Sullivan held that USCIS acted “arbitrarily, capriciously, and abused its discretion” in denying an employer’s petition for H-1B visa status on behalf of a foreign national who worked for LexisNexis as a data analyst. The Court specifically found that USCIS violated federal law, misinterpreted its own rules and regulations, and ignored “a mountain of evidence” when it attempted to justify the denial of the employer’s H-1B visa petition on the basis that the “data analyst computer programmer” role was not a “specialty occupation.”

           "This decision is an important victory, with nationwide importance, for employers seeking to comply with immigration law and employ foreign nationals in specialty occupations,” said Misty Wilson Borkowski, who serves as Chair for Cross, Gunter, Witherspoon & Galchus, P.C.’s Business Immigration practice section. Signaling a silent sea change in federal immigration policy, the denial rate of H-1B petitions quadrupled, from 6% to 24%, in the first two quarters of FY 2019. “Improper adjudication are costly for employers and this decision confirms the success of our litigation strategy,” said Borkowski. Indeed, in combating improper adjudications, CGWG has successfully sued USCIS in federal court to reverse similarly arbitrary adjudications.

           Given the current challenges employers face in business immigration matters, and to ensure the best chance of success when filing H-1B petitions (particularly for employees in computer-related fields), employers should work with experienced immigration counsel to provide sufficient and probative evidence to prove that the position is a specialty occupation.

 

If you have any questions or concerns regarding this announcement, please contact CGWG’s immigration attorneys Misty Wilson Borkowski or George Ernst.