Partner Jeff Joseph is quoted in Law360 article about H-1B Visa Denials

Orgs Say Gov’t Wrongly Denying Market Analysts H-1B Visas

By Sarah Martinson

Law360 (April 17, 2020, 3:48 PM EDT) — The American Immigration Lawyers Association and the American Immigration Council have sued U.S. Citizenship and Immigration Services in a proposed class action alleging that the agency is unlawfully denying H-1B specialty occupation visas to market research analysts.

The groups, on behalf of U.S. companies MadKudu Inc. and Quick Fitting Inc. and foreign workers who were denied H-1B visas, said Thursday that USCIS is incorrectly interpreting the U.S. Department of Labor‘s definition of a market research analyst to mean that the position doesn’t qualify as a specialty occupation.

USCIS is wrongly concluding that analyst positions don’t meet the first requirement of a specialty occupation, which is that the job requires a bachelor’s degree or higher for entry into the profession, because the DOL’s Occupational Outlook Handbook says market research analysts can specialize in several areas of study, the groups said.

“That multiple degrees will prepare a person to be a market research analyst does not negate the fact that the typical degrees for this occupation are all closely related to market research and, thus, constitute a specific specialty,” they said.

In the past three years, USCIS has denied at least 66 H-1B visa petitions for market research analysts, using the same reasoning, according to the complaint.

Marketing software analytics company MadKudu and plumbing equipment supplier Quick Fitting each filed an H-1B visa petition for a market research analyst who had a degree in business administration that was rejected by USCIS, the complaint said. In both cases, USCIS reasoned that a market research analyst does not meet the first requirement of a specialty occupation, according to the complaint.

The groups said USCIS is violating the Immigration and Nationality Act and the Administrative Procedure Act by ignoring that the DOL’s handbook says market research analysts “typically need a bachelor’s degree in market research or a related field.”

The groups said they meet the criteria for class certification because USCIS has denied more than 40 H-1B visa petitions based on its incorrect interpretation of the DOL’s definition of a market research analyst.

In addition to class certification, the groups want their proposed class members’ H-1B petition denials to be vacated and USCIS enjoined from continuing to ignore that market research analysts “typically need a bachelor’s degree in market research or a related field.”

AILA’s Director of Federal Litigation Jesse Bless said in a statement that USCIS’ shifting interpretation of H-1B petitions has “resulted in a material rise in costs and harm to U.S. employers seeking to temporarily employ talented foreign nationals.”

“The unrelenting unlawful practice of USCIS necessitates classwide relief,” Bless said.

The companies’ attorney Jeff Joseph of Joseph & Hall PC said in a statement that USCIS’ decision-making is “nonsense” and disregards “substantial evidence that clearly establishes that market research analysts are a specialty occupation.”

“Under USCIS’ twisted logic, my English literature degree rendered me uniquely unprepared to take on the professional specialty occupation of immigration lawyer,” Joseph said.

USCIS does not comment on pending litigation.

The companies are represented by Trina Realmuto of the American Immigration Council, Zachary Nightingale of Van Der Hout LLP, Mary Kenney and Leslie K. Dellon of the American Immigration Council, Jesse M. Bless of the American Immigration Lawyers Association, Jeff Joseph of Joseph & Hall PC and Charles H. Kuck of Kuck Baxter Immigration.

Counsel information for the government was not immediately available Friday.

The case is MadKudu Inc. et al. v. U.S. Citizenship and Immigration Services et al., case number 5:20-cv-02653, in the U.S. District Court for the Northern District of California.

–Editing by Stephen Berg.