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Lawsuit Over H-1B Specialty Occupation Denials Moves Forward

Sept. 15, 2020, 4:44 PM

Businesses seeking H-1B visa petitions for market research analysts will be able to pursue their claims that U.S. Citizenship and Immigration Services has “routinely and unlawfully” denied those applications, a federal judge ruled.

Magistrate Judge Susan van Keulen, of the U.S. District Court for the Northern District of California, denied the agency’s motion to dismiss on Monday, finding that despite USCIS reopening and approving H-1B petitions for two of the plaintiffs, those actions were in response to the litigation. She said the businesses were “likely to face a similar challenge again” in petitioning for these jobs.

MadKudu Inc., Quick Fitting Inc., Hanguang International Inc., and 2nd Street USA Inc. sued the agency in April over its denials of H-1B petitions for market research analysts, because it said the position didn’t meet the visa program’s definition of “specialty occupation.”

According to the complaint, USCIS has denied at least 66 market research analyst H-1B petitions in the last three years, and six petitions in the first two months of 2020.

“The judge recognized that because of the litigation, USCIS approved our first two plaintiffs in an attempt to pick them off, but their claims remained redressible and live, because there are continuing harms,” said Jesse Bless, director of federal litigation for the American Immigration Lawyers Association and an attorney in the case. “There’s more left to be done.”

An agency spokesman said it doesn’t comment on pending litigation.

Similar Occurrences

Van Keulen also found that just because the H-1B denials for high-skilled workers were adjudicated at separate USCIS service centers across the country “does not undermine Plaintiffs’ argument that the denials involve the same series of occurrences.”

Because of that similarity, van Keulen found that the plaintiffs’ claims of a systemic pattern of events resulting in H-1B denials for the market research analyst occupation were “sufficiently related to constitute a common transaction or occurrence,” she said.

The next motion van Keulen will consider is for class certification, Bless said, adding that “a lot of findings in this order lead us to have faith in our argument.”

“She rebuked the government’s attempt to say that all H-1Bs are individually considered and couldn’t be a class,” Bless added. “It’s a very large step toward recognition that the agency has taken a pattern and practice approach to certain H-1B petitions and specialty occupations.”

The case is Madkudu Inc. v. U.S. Citizenship and Immigration Services, N.D. Cal., No. 20-cv-02653, opinion 9/14/20.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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