Federal Judge rules USCIS Improperly Denied H-1B Petition


What is going on?

According to a Forbes article by Stuart Anderson, a federal judge has ruled that U.S. Citizenship and Immigration Services (USCIS) improperly denied InspectionXpert Corporation an H-1B petition for a Quality Engineer position that was selected in the H-1B lottery. According to InspectionXpert's employer letter to USCIS, the position requires a "Bachelor's degree or higher in Mechanical Engineering, Computer Science or a related technical or engineering field (or the equivalent)."

USCIS denied the H-1B petition arguing that the position did not require a "degree in a specific specialty."

Judge L. Patrick Auld rejected USCIS' argument that they could deny the petition on the basis that the position did not require a degree in a specific sub-specialty and could be filled by candidates with degrees in other disciplines.

Why should employers care?

If USCIS follows Judge Auld's decision, this could significantly limit USCIS adjudicators' ability to deny future H-1B petitions on the basis that the sought position does not qualify as a specialty occupation.

What should employers do?

With Cap H-1B season upon us, employers should educate themselves about the H-1B requirements for positions they are seeking to fill. It is also crucial to invest adequate time writing the job description for the sought position. Our live H-1B trainings, led by experienced, practicing business immigration attorneys, cover discussion on preparing for requests for evidence (RFEs) and best practices. Trainings are found HERE.

Leyla McMullen

Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.

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