Lawsuit Now Covers Hundreds of H-1B Petitions for Market Research Analyst Positions Filed by American Businesses

WASHINGTON, DC — A federal judge has granted class certification in MadKudu Inc., et al. v. USCIS, et al., a lawsuit challenging U.S. Citizenship and Immigration Services’ (USCIS) pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by businesses in the United States.

The lawsuit—filed in federal court in the Northern District of California by the American Immigration Council, the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout LLP, Joseph & Hall P.C., and Kuck Baxter Immigration LLC—seeks to rein in the unlawful adjudication practice USCIS uses in determining whether a market research analyst job qualifies as a “specialty occupation.” The lawsuit also points to the agency’s misinterpretation of the Occupational Outlook Handbook—a publication of the U.S. Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States’ job market.

The H-1B visa category allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent in a specific specialty. U.S. employers seeking highly educated foreign professionals submit their petitions to USCIS.

“This ruling is an important victory as we can now ask the court to take action, in a single lawsuit, that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K. Dellon, staff attorney (business immigration) at the American Immigration Council. “Research shows that H-1B workers complement U.S. workers, fill employment gaps in many occupations, and expand job opportunities for all.”

"While this victory opens an opportunity for the entire class, I want to recognize and celebrate the courage of the named plaintiffs, and now class representatives, for stepping forward on behalf of those similarly aggrieved,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association.

“We are hoping that a new administration brings more sensible business immigration policy to USCIS adjudications. When you have to litigate about whether only one particular degree can lead to a variety of professional specialty occupations, you know that the government is just reaching for reasons to deny cases,” said Jeff Joseph, senior partner and director of corporate immigration and employer compliance at Joseph & Hall P.C.

“We are delighted that the court is holding USCIS accountable in how it adjudicates these H-1B visas. Hopefully, USCIS will learn the lesson the court is teaching it here—follow your own laws and regulations,” said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.

Cite as AILA Doc. No. 20111800.