US Court Agrees with USCIS H1B Specialty Occupation Denial

US federal court agrees with USCIS H1B transfer specialty occupation denial decision for QA Analyst position. University professor expert letter did not work.

Written by Am22tech
  By Am22tech      Updated  9 Mar, 20

2        

A federal court case challenging USCIS decision of H1B denial on the basis of Specialty Occupation was decided in favor of USCIS on July 15, 2019.

Nobody is safe in today’s USCIS and Trump world. The case was filed by Usha Sagarwala who held her H1B visa since 2012 but her H1B transfer was denied after 3 earlier extension approvals.

Usha’s i140 is approved but she cannot legally work in US unless her H1B is approved. Sagarwala responded by filing this lawsuit, asking the Court to hold USCIS’s decision unlawful and order the agency to approve the petition.

The hopes of getting a favorable decision from U.S. District Court to revert the USCIS’s denial of the H-1B petition as “arbitrary” and “capricious” under the Administrative Procedure Act (“APA”) went down the drain when judge Rudolph Contreras agreed with USCIS decision.

Usha’s Options After H1B Denial

Usha has limited options at this time:

  1. Wait for her Indian Green card priority date to get current OR
  2. File a new H1B extension or transfer but will have to wait for result outside US OR
  3. Go back to work for her old employer if the H1B is still valid and employer has not revoked the petition yet.

H1B QA Analyst – Not Specialty Occupation

This H1B transfer was for “QA Analyst” position at Anthem Inc in Wallingford, Connecticut, where Anthem is a third party IT sub-contractor.

The application was duly supported by university professor expert opinion letter which claimed that the position is a specialty occupation.

But, USCIS still issued an RFE to prove:

  1. Specialty Occupation.
  2. Employer Employee relationship.

HSK technologies responded to RFE with a more detailed description of the QA Analyst position, job listings of other industry positions that were apparently similar to HSK Technologies’ position, and a revised expert report.

They also submitted a verification letter from Anthem, a copy of the subcontractor agreement, and Sagarwala’s time sheets and pay-stubs to prove the employer employee relationship.

USCIS denied the H1B after RFE as the proofs did not fit the USCIS strict specialty occupation guidelines after Trump’s ‘Buy American Hire American’ executive order.

USCIS Reasons for Denial

USCIS says that to prove specialty occupation RFE, you should have:

  1. A bachelor, masters or higher degree is required to perform the H1B job.
  2. The H1B job is complex and it can be performed only by an individual with a degree in that field of work.

HSK’s H1B job position’s minimum entry requirements were a pretty wide which did not go well with ‘Specialty Occupation’ criteria unless they could prove that how each field is directly related to the daily work duties of Quality Assurance Analyst.

A minimum of a bachelor’s degree in Computer Science, Information Technology, Mathematics,
Engineering or its equivalent, as well as any other interested and qualified professionals with diverse backgrounds in the sciences, technology, engineering, or mathematics, who had the necessary quantitative and qualitative critical thinking skill sets.

The interesting point in this case is that HSK changed the job’s education requirement to a more restrictive in their RFE response. A red flag immediately pops up as they now claimed that bachelor’s degree in Computer Information Systems or related field, such as Information Systems or Computer Science was required to perform QA Analyst job.

As per recent report from USCIS, the specialty occupation RFE and employer employee relationship are top reasons for H1B denial especially with IT consulting companies.

USCIS said that an H1B job is not a specialty occupation only if the employer alone thinks so unless it can be proved on paper.

USCIS concluded that QA Analyst position did not require the theoretical and practical application of a body of highly specialized knowledge or the attainment of a bachelor’s or higher degree in a specific specialty because the minimum qualifications appeared to be from a wide variety of disparate fields of study.

Court Decision

The Court found USCIS’s denial analysis to be reasonable. Again, to prove that the QA Analyst position was complex, HSK Technologies submitted only one-page list of duties which contained mix of vague and complex sounding requirement with jargon like:

  • Responsible for the set of tasks and techniques used to work as a liaison among stakeholders in order to understand the structure, policies, and operations of an organization – VAGUE.
  • Working with a team of java developers, database administrators and a technical product owner as part of the team as Software quality analyst – VAGUE.
  • Validating data retrieved from the DB – Did not explain what ‘DB’ is?
  • Test API Web services using Rest Assured using JSON format with JAVA and POSTMAN and work on Selenium-Grid to do the multi browser – Too complex for layman to understand and no explanation provided in H1B application.

The company failed to provide any accessible explanation of what these responsibilities actually entailed.

The evidence submitted by HSK from other employers in the industry indicated that, for similar jobs, some of those employers required a bachelor’s degree in a specific specialty, but not others.

As USCIS observed, HSK Technologies did not provide any comparative discussion that indicated how the duties of its QA Analyst position were more specialized and complex than those of other QA Analyst positions that are not usually associated with at least a bachelor’s degree in a specific specialty.

Hence, judge Rudolph Contreras denied Sagarwala’s appeal to set aside USCIS specialty occupation H1B denial and gave his decision in favor of USCIS.

Court Case Full Description


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Source: Bloomberg




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  2 Useful Questions & Answers

  1. Shiv Shankarprasad
    Shiv Shankarprasad 22 Jul, 19 at 2:24 pm

    Hi Anil,
    Can you share the sample template for the Speciality Occupation certificate?

    Thanks
    Shan.


    • Anil Gupta
      Anil Gupta 22 Jul, 19 at 5:25 pm

      I don’t have the template yet but working on one.

      You would need a detailed letter from a university professor to show that your occupation is a specialty occupation.

      Professor would know how to write it.


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