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The USCIS Rescinds Stringent Professional and Educational Requirements for H-1B Petition Adjudications in Response to Ninth Circuit Challenge

USCIS Rescinds Stringent Requirements for H-1B Petition

Written by Taher Kameli & Chathan Vemuri

On February 3, 2021, in what is sure to be welcome news for H-1B applicants, United States Citizenship and Immigration Services rescinded the 2017 Policy Memorandum PM–602-0142 that it previously issued under the Trump administration.[1] Under the 2017 Policy Memorandum, the USCIS discarded the US Department of Labor’s (DOL) classification of occupations covered by the H-1B program, specifically rejecting the DOL’s requirement that positions within that particular classification of H-1B occupations required only bachelor’s degree in computer science or a related field for entry.[2]

 

The USCIS also disagreed with the DOL not providing a list of specific degree fields relating to these occupations.[3] Instead, the USCIS would evaluate H-1B visa petitions by conducting an expansive inquiry to employers as to the different roles in Computer programming (where H-1B workers are heavily employed), their intricate requirements, expert analysis on qualifications and duties of sponsored H-1B employees, and internal hiring and recruiting practices.[4] As such, employers found it extremely difficult to sponsor H-1B workers based on such piercing scrutiny of every aspect of their work for the purpose of granting petitions.[5] There was also a rapid increase in denials of H-1B visa petitions under the 2017 policy memo.[6]

 

This policy came under particular scrutiny this year when the U.S. Court of Appeals for the Ninth Circuit reviewed the USCIS policy under the Administrative Procedures Act.[7] In the case of Innova Sols., Inc. v. Baran, the Ninth Circuit found that the USCIS’s denial of an H-1B visa petition violated Section 706(2)(A) of the Administrative Procedures Act under the “arbitrary and capricious” standard.[8] Under the “arbitrary and capricious” standard, a government agency action would be arbitrary and capricious if it “ ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ”[1]

 

In order to overcome a challenge to its action under the “arbitrary and capricious” standard, an agency must provide “ ‘a satisfactory explanation’ for its action, ‘including a rational connection between the facts found and the choice made.’ ”[2]

 

It found that the USCIS conclusion in denying the petition in question, that a bachelor’s degree was “not “normally” required for computer programming positions” like the one in question, was arbitrary and capricious as it did not rely on any evidence other than the Department of Labor’s Occupational Outlook Handbook (OOH).[3] Oddly enough, the DOL’s OOH also stated that a bachelor’s degree was the “”[t]ypical level of education that most workers need to enter” the computer programmer occupation.”[4]

 

In addition, it found the USCIS’s distinguishing between the OOH’s saying a bachelor’s degree or its equivalent in a particular specialty is “typically needed” and the seemingly more mandatory “normally required”, as being little more than arbitrary hair splitting between two synonyms.[5] It also found that the USCIS’s reasoning in defense of its rationale was invalid as there was “no rational connection” between the OOH cited by the USCIS (the only source cited) and the “USCIS’s decision that a bachelor’s degree is not normally required.”[6] Finally, the Ninth Circuit noted that the USCIS’s interpretation of the OOH was implausible and the OOH unambiguous, making deference to the agency’s interpretation unwarranted[7].

 

Overall, the USCIS’s explanation that contradicted what was in the OOH, it’s serious misinterpretation of the only source cited to justify its stance (the OOH) and its failure to consider key evidence in the OOH served to make its decision to deny the H-1B petition in this case fail under the “arbitrary and capricious” standard.[8] Consequently, they reversed the lower court decision in favor of the USCIS’s decision.[9]

 

Moreover, the fallout from the Ninth Circuit’s ruling led to the USCIS issuing the new policy memo of February 3, 2021, which rescinded the 2017 Policy Memo in question.[10] This can only be a positive development for both H-1B applicants hoping to get approved without having to meet stringent arcane definitions of qualifications for their jobs, and for employers seeking to sponsor H-1B petitioners without difficulty.

 

Therefore, it also continues the Biden presidency’s commitment to undoing the Trump administration’s damaging restrictions on immigration and making it more flexible and fair to those seeking to live and work in the United States. It can only be hoped that further changes to rules like this will continue in the coming months.

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the USCIS’s decision to reverse the 2017 Policy Memo on H-1B petitions and how it may affect you. 

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[1] Id. at 6. (citing Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007) in turn quoting Motor Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

[2] Id. (citing Dep’t of Com.v. New York, 139 S. Ct. 2551, 2569 (2019)).

[3] Id. at 7-8.

[4] Id. at 7.

[5] Id. at 7-8.

[6] Id. at 8.

[7] Id. at 9.

[8] Id. at 7-14.

[9] Id. at 15.

[10] Cwik, Marissa E. USCIS Rescinds Controversial Guidance on H-1B Classification for Computer-Related Positions, 47 Nat’l Law Rev. vol. XI (Feb. 13, 2021) available at https://www.natlawreview.com/article/uscis-rescinds-controversial-guidance-h-1b-classification-computer-related-positions

[1] Cwik, Marissa E. USCIS Rescinds Controversial Guidance on H-1B Classification for Computer-Related Positions, 47 Nat’l Law Rev. vol. XI (Feb. 13, 2021) available at https://www.natlawreview.com/article/uscis-rescinds-controversial-guidance-h-1b-classification-computer-related-positions

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Innova Sols., Inc. v. Baran, 2020 U.S. App, LEXIS 39492, 6 (9th Cir. Dec. 16, 2020).

[8] Id. at 6-7. (citing 5 U.S.C. §706(2)(A) which states that courts must set aside agency actions that are “found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”)