For many companies in Texas, H-1B visas are an important way of bringing skilled, highly educated foreign workers to the United States. In many cases, these visas ease the entry of skilled tech workers, often educated at leading American universities. However, business owners have expressed concern, especially as a growing number of H-1B petitions seem to be rejected by U.S. Citizenship and Immigration Services (USCIS). In one recent case, a federal judge determined that an H-1B petition was unfairly denied by USCIS when it claimed that the application did not qualify as a designated “specialty occupation.”
The judge determined that the courts do not owe deference to USCIS in examining whether or not the agency properly handled the petition. USCIS claimed that it was appropriate to refuse the petition because the position could be filled by a person with a degree in several different engineering specialties. Specifically, the position required extensive knowledge of computer-aided design (CAD) and mechanical engineering. The H-1B visa applicant had a master’s degree in mechanical engineering. However, USCIS denied the application because the company said that industrial engineering would also be an acceptable degree for the position.
The company argued that the occupation was, in fact, specialized and submitted several reports to back up its position, which USCIS rejected. The agency then argued that the judge should show deference in defining what qualifies as a specialty occupation. However, the judge argued that such deference was only appropriate when a rule was fixed, rather than ad hoc; in this case, the judge also documented that this rule had been applied differently on multiple occasions.
H-1B visas are an important pipeline for skilled talent for many businesses, but the process can be complex and bureaucratic. An immigration law attorney may help companies to navigate the business immigration process successfully.
