On December 16th, the US Court of Appeals overturned the USCIS’ denial of an H-1B visa petition as “arbitrary and capricious” in a case called Innova Solutions Inc. v Baran (Innova).[1]
Here are the facts … Innova wanted to hire a citizen of India with a bachelor’s degree as a computer programmer and petitioned for an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” [2]
The Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”[3]
In an application of the rule, the USCA explained that there is no space between “typically needed”, per the OOH, and “normally required”, per the regulation, and that USCIS’ suggestion that there is “space” between these words is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
In conclusion, the panel decided that USCIS’ decision was “arbitrary and capricious“ because it misrepresented the OOH. Finally, the panel concluded that USCIS’s decision was “arbitrary and capricious” because USCIS failed to consider key evidence, namely, the OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.”
This case stands for a triumph of common sense approach to Analysis of whether or not a computer programming position is deemed to be “professional“ and one and a “specialty occupation“ as those terms are recognized in the H-1B regulations.
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[1] https://economictimes.indiatimes.com/tech/information-tech/biden-rescinds-trump-memo-denying-h-1b-visa-to-programmers/articleshow/80736808.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[2] Id.
[3] https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm
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