US Magistrate Judge L. Patrick Auld has ruled that US Citizenship & Immigration Services (USCIS) improperly denied an H-1B petition after USCIS claimed the position did not qualify as a “specialty occupation.” Stuart Anderson, senior contributor at Forbes, writes that this ruling is the “first known case where a federal judge has analyzed whether the USCIS interpretation of its H-1B regulation is entitled to deference under the recent Supreme Court Kisor decision — and the judge determined the USCIS interpretation was not entitled to deference.” In the ruling, the judge rejected USCIS’s assertion that the agency could deny an H-1B petition because the position did not require a degree in a specific subspecialty and that position could be filled by an individual with a degree in more than one discipline.
“USCIS uses a convoluted, nearly indecipherable rationale to define the word ‘degree’ to mean ‘not just a degree,’ but a degree in a specific specialty,” Bradley Banias, a partner with Wasden Banias, LLC who argued the case for the plaintiff, told Anderson in an interview. “Based on this rationale, the agency would find if the position could be filled by someone with a mechanical engineering degree or an electrical engineering degree, USCIS would say that position is not a specialty occupation because it does not require a lone type of degree in a specific specialty.” Banias praised the ruling: “For years, USCIS has used nonsensical distinctions to deny H-1Bs. This opinion will allow employers to push back hard.”
