U.S. Employers Settle Lawsuit Challenging USCIS’ Unlawful Denial of H-1B Petitions Filed by American Businesses
WASHINGTON, Oct. 28, 2021—The federal district court in the Northern District of California approved a settlement in a class action lawsuit challenging U.S. Citizenship and Immigration Services’ 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 parties in MadKudu Inc., et al. v. USCIS, et al., reached a settlement agreement that corrects the agency’s misinterpretation of the Occupational Outlook Handbook—a Department of Labor’s Bureau of Labor Statistics publication profiling hundreds of occupations in the U.S. job market. Based on its prior interpretation of the OOH, USCIS erroneously determined that market research analysts did not qualify as a “specialty occupation.” The settlement agreement changes this agency error and provides U.S. employers who qualify the opportunity to request that USCIS reopen and re-adjudicate their denied H-1B petitions.
To be a class member, a U.S. employer must have filed a market research analyst H-1B petition during the time period from January 1, 2019 through October 19, 2021. USCIS must have then denied the petition based on a finding that the OOH entry—as it existed on October 19— failed to establish that market research analyst is a “specialty occupation,” and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved.
The American Immigration Council, the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout LLP, Berry Appleman & Leiden LLP (formerly Joseph & Hall P.C.), and Kuck Baxter Immigration LLC represented the plaintiffs.
“This settlement is an important victory that will benefit hundreds of American businesses and the market research analysts they sought to employ,” said Leslie K. Dellon, senior attorney (business immigration) at the American Immigration Council. “The settlement gives U.S. businesses another chance to have their H-1B market research analyst petitions approved—this time under new guidance worked out by the parties to the lawsuit. Each H-1B petition reopened and approved will represent another opportunity for U.S. employers and the workers they sponsored to advance their business objectives.”
“I am forever grateful for the courage of the class representatives who not only challenged their own denials but carried the torch for an entire class of employers who had received erroneous H-1B denials. AILA and its members applaud this incredible act of selflessness from our plaintiffs and the expertise of our co-counsel,” said Jesse Bless, AILA director of federal litigation.
“This settlement finally resolves an issue on which immigration lawyers have been battling the government for years. This settlement strikes the right balance between what the regulations actually say and how employers evaluate a candidate’s professional qualifications in the real world. It is our sincere hope that USCIS will now interpret other specialty occupations from a perspective that is in line with what actually happens in the free market,” said Jeff Joseph, partner at Berry Appleman & Leiden LLP.
"It is unfortunate that the only way for USCIS to follow the law and do the right thing is to bring litigation. But, know this—we will be watching for USCIS compliance with this decision, and we will be prepared to pursue litigation for other interpretive violations of written law and regulation that the agency has permitted to occur,” said Charles H. Kuck, managing partner at Kuck Baxter Immigration LLC.
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The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.