The “Art” of Denial

Laura Rosmarin Blog

This week a U.S. District Court Judge ruled against USCIS and reversed the agency’s denial of H-1B classification for a Data Analyst at LexisNexis. In his opinion, Judge Emmet G. Sullivan stated that USCIS’s rationale in its decision was both “factually inaccurate and not supported by the record” and the federal agency was also “arbitrary and capricious” in its determination.

“Arbitrary and Capricious” come from the Administrative Procedures Act (APA) which states that “a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. Section 706(2)(A).

The APA serves as a check on federal agencies running afoul of the laws created by Congress. With the Trump Administration’s continued assault on the H-1B visa program through policy memos, RFE’s and denials, many companies and individuals are taking USCIS to federal court, and they are winning. The APA authorizes courts to “set aside” agency action that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” or otherwise “not in accordance with law.”   5 U.S.C. §706(2)(A), (C). This means that courts will invalidate agency actions that contravene the meaning of a governing statute.

In the case decided this week, Relx, Inc. v. Baran, the petitioner, LexisNexis, filed an H-1B petition for an Indian national to serve as their Data Analyst. The employee has a master’s degree in Business Administration with a concentration in Business Analytics, a Bachelor of Technology in Computer Science, and four years of work experience in data analytics. USCIS issued an RFE requesting additional evidence that the position was a Specialty Occupation.   LexisNexis responded with an Org Chart, Supplemental Letter from the company, six similar job postings, and an expert opinion. USCIS denied the petition stating that LexisNexis had not proven the position was a Specialty Occupation. This decision was reversed by the U.S. District Court for the District of Columbia on August 5, 2019 and USCIS was ordered to grant LexisNexis’ petition and change the beneficiary’s status to H-1B nonimmigrant.

In the Court’s reasoning, each prong of the legislative criteria was addressed. The Court began by reciting the legislative definition of a “Specialty Occupation,” which is “an occupation that requires theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C Section 1184(i)(1). The Court then listed the four criteria of a specialty occupation, (1) a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or the position is so unique or complex that only an individual with a degree can perform it; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a baccalaureate degree or higher. 8 C.F.R. Section 214.2(h)(4)(iii)(A).

We are all aware that H-1B denial rates have had a significant uptick since Trump. “Denial rates for H-1B petitions have risen from 6% in FY 2015 to 32% in the first quarter of FY 2019 for new H-1B petitions for initial employment,” according to a National Foundation for American Policy (NFAP) analysis of USCIS data in the H-1B Employer Data Hub. However, the statute has remained the same. How is it possible that evidence which has always been acceptable in the past is now “insufficient?” USCIS is constantly changing and reshaping new rationales to deny H-1B petitions. It is this new USCIS rationale that a federal court has this week called “Arbitrary and Capricious.”

In its decision, the Court pointed out that USCIS “ignores” evidence. LexisNexis provided evidence from the Dept. of Labor’s Occupational Outlook Handbook which states that more than 90% of these positions require at least a bachelor’s degree.   LexisNexis also provided an expert opinion from a professor in the field. However, USCIS denied all four criteria of specialty occupation without addressing this specific evidence. This tactic is the art of ignoring. USCIS will often neglect to address evidence when issuing a denial.   This tactic did not go unnoticed by the Court which wrote in its opinion, “the agency’s rationale was both factually inaccurate and not supported by the record.” … “The agency failed to address either the information found in the OOH or the expert opinion.”

Linguistic gymnastics is another tactic used by USCIS in H-1B denials. The agency twists words and the intended meaning of the statute to serve their desired outcome. The Court dissected the agency’s reasoning to uncover this wordplay. LexisNexis produced several job postings for Data Analyst positions, all of which required, at minimum a bachelor’s degree. The Agency rejected this evidence because “multiple fields of educations appear to be acceptable” meaning that the position cannot be “specialized.” The Court found this reasoning “untenable.” The Court pointed out that there is no requirement in the statue that only one type of degree be accepted for a position to be specialized. This rational is commonly used by USCIS to deny H-1B occupations as “not specialized.” The Court identified this word play for what it is, a misreading of the law. The Court stated, “Nowhere in the statue does it require the degree to come solely from one particular academic discipline. As other courts have explained “diplomas rarely come bearing occupation-specific majors.”

USICS is clearly developing its own work of art in their denials. This is the only way they can possibly establish such an exponential increase in H-1B denials without any change in the statute. The cases have gotten stronger and the need for specialized workers continues to grow. The only way to increase the denial rate and keep employment-based immigration down is to invent new reasons and methods for denials. The statute hasn’t changed. The law remains the same. The only change has been within the agency and their application of U.S. immigration law. For this reason, we must continue to use the APA as a check on an agency that continues to ignore and misapply the meaning and intent of the Immigration and Nationality Act.

About the Author

Laura Rosmarin

Senior Counsel