Visa Crunch

H-1B Visa: US Court Rules To Qualify Market Research Analyst As Speciality Occupation Under USCIS

In an important victory for all the H-1B employers, a US court granted a settlement in which an American immigration company permitted to recognize “market research analyst” as a speciality occupation for the purpose of ascertaining application requests for H-1B visas, which are highly sought after by Indian IT professionals.

The United States Citizenship and Immigration Services (USCIS) determined that “Market Research Analysts” did not meet the criteria as a “speciality occupation” based on its previous understanding of the Occupational Outlook Handbook, a publication of the Department of Labor – Bureau of Labor Statistics that profiles hundreds of occupations in the US job market.

The settlement endorsed by the federal district court in the Northern District of California now allows businesses to demand that USCIS restarts and re-adjudicate their rejected H-1B requests.

According to Leslie K Dellon, Senior Attorney (Business Immigration) at the American Immigration Council, this settlement is a significant victory for hundreds of American businesses that they sought to hire market research analysts.

“The settlement gives US 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 US employers and the workers they sponsored to advance their business objectives,” Dellon said.

The American Immigration Council, American Immigration Lawyers Association (AILA), and the law firms Van Der Hout LLP, Berry Appleman & Leiden LLP, and Kuck Baxter Immigration LLC filed the class action lawsuit.

These many organizations had objected to the USCIS decision which had previously barred the issuance of H-1B visas to people of foreign origin hired by American firms to work as market research analysts.

“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. The members of AILA applaud this incredible act of selflessness from our plaintiffs and the expertise of our co-counsel,” said Jesse Bless, Director of Federal Litigation at the American Immigration Lawyers Association.

According to Jeff Joseph, partner at Berry Appleman & Leiden LLP, this settlement resolves an issue that immigration lawyers have been constantly fighting with the government for a long time now.

“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 speciality occupations from a perspective that is in line with what actually happens in the free market,” Joseph said.

The decision is significant for countries such as India, China, and others that rely heavily on the H-1B visa route. The H-1B visa is used for a large number of IT professionals and other highly skilled professionals from these countries to immigrate to the United States.

“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.

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