A federal judge ruled that US Citizenship and Immigration Services (USCIS) improperly denied an H-1B petition by attempting to impose a subspecialty requirement that is not warranted by the governing statute, regulation, or legislative history. US Magistrate Judge L. Patrick Auld rejected USCIS’s assertion that the offered position in the case did not qualify as an H-1B “specialty occupation” because it did not require a degree in a specific subspecialty and could be filled by workers with degrees in more than one discipline, such as different types of engineering degrees.
On the cusp of the annual fiscal year H-1B selection, the ruling, which, as reported by Forbes, is the first known case where a federal judge has analyzed whether USCIS’s interpretations of its H-1B regulation is entitled to deference under the recent Supreme Court Kisor decision, addresses one of the most prevalent grounds of rejection of H-1B petitions by USCIS in the past two years. The judge deemed the USCIS posture to run afoul of “the Agency’s longstanding construction, which recognizes that a position can qualify as a specialty occupation even if it permits a degree in more than one academic discipline.” The judge further deemed the decision of USCIS to ignore the evaluation of the position at issue by an expert evaluator to fall short of the arbitrary and capricious standard.
As reported by the media, USCIS denied one out of every five new H-1B petitions in 2019. The ruling in this case squarely attacks the agency’s aggressive narrowing of the H-1B bachelor’s degree prerequisite. As Judge Auld’s decision summarizes: “That the [USCIS] Decision deemed an engineering degree requirement too generalized further confirms the unreasonableness of the Decision’s interpretation. . . . Put simply, in contrast to a liberal arts degree, which the Service deemed ‘an [in]appropriate degree in a profession’ because of its ‘broad[ness]’ . . . an engineering degree requirement meets the specialty occupation degree requirement.” The plaintiff in the case, InspectionXpert Corporation (IXC), filed an H-1B petition for a Quality Engineer position that was selected in the H-1B lottery. The sponsored beneficiary, Sathish Kasilingam, has a master’s degree in mechanical engineering.