Aug 5, 2019: US District of Columbia federal court has asked USCIS to approve the H1B which was denied on the basis of Specialty Occupation.
The case was filed by Subhasree Chatterjee, a Data Analyst working for LexisNexis, who is currently on F1 visa with STEM OPT.
The favorable decision from Federal Court to revert the USCIS’s denial of the H-1B petition by judge Emmet G. Sullivan has given her a big relief.
The court rulings vary with each specialty occupation case as we saw in June that court agreed with QA Analyst position’s denial with same Specialty occupation reason.
Data Analyst Specialty Occupation RFE Response
LexisNexis submitted the following documents to prove Specialty Occupation RFE:
- Specialty Occupation Cover Letter.
- An organizational chart.
- Six job announcements for Data Analyst positions, from six different employers, each showing that Data Analyst positions require at least a Bachelor’s degree in STEM fields such as business analytics, statistics, mathematics, economics or operations research.
- Expert opinion from Dr. Gerhard Steinke, Professor of Management and Information Systems at Seattle Pacific University.
USCIS simply denied the H1B after receiving RFE response giving the reason that Data Analyst position does not qualify for specialty occupation. The reconsideration request was also denied in this case.
Why Court Decided in Favor of H1B?
#1 F1 Visa Expiry Hardship
The F1 visa expiry on Aug 3, 2019 would have affected the person with loss of job as she would need to leave US immediately.
The court considered this as significant hardship under the Administrative Procedure Act (“APA”) law.
#2 USCIS Issued RFE again after Court Case Filing
To avoid fighting the case, USCIS re-opened the H1B case file immediately after the case was filed in federal court.
USCIS issued an RFE again probably because they knew they may not be able to defend the case keeping in mind that LexisNexis is itself a law firm and may bring stronger arguments to the court.
Court, however, sided with H1B as there was evidence that USCIS has reopened the case not to reconsider new evidence but rather to delay a decision on the H-1B petition.
Court had found that new RFE issued after court case asked requested the same information as was asked earlier.
#3 USCIS ignored O*Net and OOH References
The court agreed with OOH page reference which did provide specific educational requirements for the computer operations category to be a four-year bachelor’s degree.
Court did not agree with USCIS’s decision that the degree requirement was not common to the industry in parallel positions among similar organizations.
Court also did not understand as to why USCIS completely ignored the expert opinion letter to prove Specialty occupation.
USCIS seems to have ignored the similar 6 data analyst job postings while making a decision too as per Judge’s opinion.
#4 Court’s Agreement with H1B Education
Court agreed that the person’s course work included stimulation modeling, stat computing, probability models, data mining, graduate case studies, forecasting methods, and data management.
Her education was found to be relevant for the H1B job profile:
- B. Tech in Computer Science and Engineering from West Bengal University of Technology, Kolkata, India.
- MBA in Business Analytics from the University of Cincinnati, Ohio, USA.
She also gained 5 years of work experience in data analytics while working with Infosys in Pune, India and then 1 year in US before joining LexisNexis in 2017.
#5 Data Analytics Job Requires Special Skills
Court also agreed that the job duties listed in H1B application are indeed complex and require special skills:
- Use SQL to extract data to describe user behavior on LexisAdvance, accessing the correct data sources, checking data integrity, and ensuring overall data quality.
- Use R, Python, or other statistical programming software to program analyses and generate reports leveraging proper statistical
techniques such as ANOVA, t-tests, linear models, or logistic regression so that decisions on A/B test results are made with full statistical confidence.
- Perform exploratory data analyses using tools like Rand Python; techniques such as descriptive statistics, k-means clustering, hierarchical modeling, and dimensional reduction.
- Analyzing, investigating, and hypothesizing data to effectively communicate with internal and external customers, management and functional areas by presenting problem resolution, product information.
- Work with Designers and Researchers, embedded in product development teams, to help them understand customer behavior.
- Analyzing, investigating, negotiating and resolving problems to help inform product design decisions.
Court ruled that since LexisNexis position was a distinct occupation which required a specialized course of study, USCIS decision was not “based on a consideration of the relevant factors” and was “a clear error of judgment.”
We are seeing a new trend where the USCIS decisions are being challenged everyday in courts.
The most affected are the H1B families, be it the denial based on Specialty Occupation or the delay of H4 EAD work permit due to Biometrics!
The day is not far when each H1B job title will be separately approved by court to pass the ‘Specialty occupation’ test which has become a big loophole that USCIS uses as per their choice.
The options are limited to stay and keep working in US after the H1B application denial.
Isn’t that dis-heartening? Share your views in comments.
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