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Federal Judge Rules Against US Citizenship and Immigration Services, Opening The Door for More Employers to Successfully File H-1B Visa Petitions


In March, a federal judge made a significant decision limiting the ability for US Citizenship and Immigration Services (USCIS) to deny H-1B petitions by claiming that a position does not qualify as a specialty occupation, which will effectively allow more employers to enable foreign professionals to obtain temporary visas to work in specialty occupations, such as engineering and technology, and more individuals seeking to work in the US under the H-1B visa to do so. Specifically, the judge rejected USCIS’ claim that it had the right to deny the visa at issue due to the agency’s interpretation of its H-1B regulation under the recently-decided Supreme Court Kisor case, ultimately finding that the agency was not entitled to deference given the circumstances.

The Issue

The plaintiff company had filed an H-1B petition for a Quality Engineer position and submitted a letter supporting a particular foreign professional, who had a master’s degree in mechanical engineering, for the position. USCIS proceeded to issue two Requests for Evidence, rejected the significant evidence that the company submitted in response to these requests (including letters from experts), and ultimately rejected the H-1B petition, finding that, based on the company’s description of the position, a specific subspecialty – such as mechanical engineering – was not required, only a general degree in engineering.

Recent Kisor v. Wilkie Supreme Court Case Changes Court Deference to Agencies Like USCIS

The company sued USCIS, arguing that their decision was arbitrary and capricious in violation of the Administrative Procedure Act. In the lawsuit, USCIS argued that it was entitled to deference in its reading of its own specialty occupation regulation; a type of deference known as Auer deference, which involves federal courts yielding to an agency’s interpretation of ambiguous regulations that they have promulgated. However, the court pointed out that the recent US Supreme Court decision in Kisor v. Wilkie changed how and when agencies receive deference in these circumstances: Only when regulations are “genuinely ambiguous” does a court afford an agency Auer deference; if there is no uncertainty with respect to what the regulation indicates, the court must give the regulation itself effect, or else it would be allowing the agency to essentially create new law via its interpretation.

The Impact of These Decisions

There is no question that, as a result of this decision, the courts will no longer simply “rubber stamp” agency interpretations, including immigration decisions made by USCIS. As a result of Kisor, specifically, the courts can now look more closely at agencies’ decisions in general instead of simply deferring to them and see that when they are actually arbitrary and capricious; as in this case, where USCIS failed to address the significant evidence that was submitted by the company. As a result, USCIS may no longer use arbitrary definitions of specialty occupations in evaluating degrees relevant to, and nonsensical distinctions to deny H-1B positions.

Contact an Immigration Lawyer for Assistance

Every day, immigration is becoming a more technical area of the law as these issues are highly litigated in response to agencies placing as many hurdles as possible in place to stifle any immigration whatsoever. Experienced North Carolina immigration attorney Rashad Hauter helps individuals and families address their immigration legal needs and achieve the outcome they desire. If you have any questions or concerns, contact our office today to find out how we can help.



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