A Huge Win For H-1B Petitioners!

Denied an H-1B petition?

Market Research Analysts may get a second chance

If USCIS has denied your H-1B petition for a market research analyst position, we have great news for you. A recent court settlement may overturn the USCIS decision against your petition. You need to act fast, though. In this newsletter, we’ll explain who is eligible to have the decision reviewed, and how to request that your case be reopened. 

On April 16, 2020, two employers brought a lawsuit to challenge USCIS’ pattern and practice of denying H-1B petitions for the position of market research analyst. The lawsuit alleged that USCIS misapplied the law to deny such petitions by “employing boilerplate language and uniform faulty reasoning.” You can read the full complaint here.

To apply for an H-1B visa, employers must prove that the proffered position is a “specialty occupation.” There are four regulatory tests, but only one is relevant in this case: “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.”

Because several degrees or fields of study may qualify a person to be a market research analyst, USCIS alleged that this role does not fulfill the degree requirement. In response, the plaintiffs alleged that the denials are “representative of a pattern and practice of similar USCIS decisions” citing “at least 66 H-1B market research analyst petitions that Defendant USCIS denied in the past three calendar years, employing the same reasoning and similar language in all.”

On May 4, 2020, these employers expanded their lawsuit, filing a nationwide class action, which was approved by a judge in November 2020. On October 19, 2021, the court approved the settlement of the parties. You can read a copy of the settlement agreement here.

This is a huge win for H-1B employers and employees who have applied or have plans to apply for H-1B visas. 

Pursuant to the settlement agreement, businesses whose H-1B petitions were denied by USCIS under 8 U.S.C. Sec. 1101 (a)(15)(H)(i)(b) for a market research analyst position can request the reopening of their case, provided that, “USCIS denied or will deny the petition solely or in part based on a finding that the specialty occupation, and … [thus the proffered position does not meet the requirement of specialty occupation]… And the petition would be approved but for this finding.”

Additionally, USCIS will assess other employment-related immigrant and non-immigrant visas based on the real market requirements and/or the employers’ business needs.

What does this mean for you? Check out the full announcement or keep reading for a step-by-step breakdown:

Does my case qualify for the class-action lawsuit?

To qualify, either you or your employer must have filed a market research analyst H-1B petition between January 1, 2019 and October 19, 2021. If your petition was denied because USCIS found that the position does not meet the requirement of a “specialty occupation” based on the degree requirement, but you fulfilled all other requirements, you qualify.

What happens now?

If you’re a class member, it is your right to file a petition for USCIS to re-open and re-adjudicate your petition. Please let us know ASAP if you wish to proceed.

When and where should class members file?

You must file the request to reopen your case on or before April 26, 2022.

What is an H-1B Visa?

The H-1B visa allows a U.S. employer to hire a foreign worker for any position that is considered a specialty occupation (typically needing at least a bachelor’s degree).

The visa is valid for 3 years beginning in October of the year you apply. The application must be initially made by way of lottery in March of each year.

Spouses and children of H-1B holders are eligible to join them on H-4 visas with mirrored duration.

You are eligible for an H-1B visa if:

A. You have earned a bachelor’s degree

B. Your employer agrees to sponsor you before March 2022

C. The proffered position meets the specialty occupation requirement

Danny Grace P.C can help

If you are a class member or a foreign worker interested in applying for an H-1B visa, or have tried to apply and been unsuccessful in the past, please feel free to reach out to Danny Grace P.C. at (646)515-2821 or Danny@dannygracepc.com to schedule a free, 30-minute case assessment.

Danny Grace P.C. is a boutique employment litigation and immigration practice located in downtown Manhattan, New York, but offering a countrywide service to its clients. We have built an extensive immigration practice specializing in visas, permanent residence (green cards), and corporate immigration. Our principal, Mr. Daniel Grace is a top-rated immigration attorney in New York, NY. 

About Danny Grace, P.C.

Founded in 2012, Danny Grace, P.C. is a boutique employment litigation and immigration practice located in Manhattan, New York. Trust the attorneys at Danny Grace, P.C. for a successful outcome on all of your legal needs.

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This newsletter is intended as general, useful information. Should you require legal advice from our team, please click here.