Daily Labor Report®

Administration’s H-1B Denials Again Subject to Litigation (1)

April 8, 2019, 5:42 PMUpdated: April 8, 2019, 7:48 PM

A company that runs salons and spas in senior communities is challenging the Trump administration’s denial of a temporary employment visa to an Indian graduate student it wants to hire as its director of business development.

U.S. Citizenship and Immigration Services is imposing additional requirements on employers beyond what they need to show to get a position qualified as a “specialty occupation” that warrants an H-1B visa, according to a complaint filed last week in federal district court in Washington.

Ohio-based PS Lifestyle LLC says the evidence it submitted to the agency is more than enough to show that the position qualifies.

Like many of the other cases involving H-1B denials, the USCIS is taking “an overly restrictive view as to what constitutes a specialty occupation,” Leslie Dellon, a staff attorney with the American Immigration Council, said April 8. “They misinterpret the law and the regulations,” she said.

“As a matter of policy, we are unable to comment on litigation,” USCIS spokeswoman Jessica Collins said April 8.

Third H-1B Case

The case is the third filed by the council, a pro-immigration advocacy group, on behalf of companies that have been denied H-1B skilled guestworker visas since President Donald Trump took office. It’s part of an initiative aimed at urging businesses to challenge adverse visa decisions in court.

The first two cases settled, with the USCIS reversing course and approving the visas on its own initiative. That outcome is likely in the current case as well, as most cases filed by businesses over H-1B denials—not just those filed by the council—have settled.

At issue in the case is whether the USCIS can require that an employer separately meet requirements under the Immigration and Nationality Act if the position merits an H-1B visa under the USCIS’s regulations. PS Lifestyle also says the agency ignored evidence that the director of business development job meets the regulatory requirements.

The USCIS has been relying heavily on Labor Department resources such as the Occupational Outlook Handbook to determine whether a position is a specialty occupation, said Brian J. Halliday of Ritter Halliday in Cleveland. The problem in this case is that “director of business development” is a “new field,” and so there isn’t “a lot of pre-packaged” DOL data to go on, he said.

But just because a field is emerging doesn’t mean it doesn’t qualify for the visa, he said.

The case is PS Lifestyle LLC v. U.S. Citizenship & Immigration Servs., D.D.C., No. 1:19-cv-00961, complaint filed 4/4/19.

(Updated with comments from the employer's counsel.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Cynthia Harasty at charasty@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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