Fighting Back: Successful Lawsuits Against H-1B Denials

By: Hannah Rae Welbourn

From banning workers from entering and starting their employment in the United States, to changing decades-old processes right before leaving office, it’s no secret that the prior administration made many attempts to restrict the H-1B process. And even having ushered in a new administration this year, there has still been conflict; in a recent post, we discussed the lawsuit filed by more than 500 H-1B visa applicants against the Department of Homeland Security, one of the latest examples in a pattern of lawsuits over the past few years. Below are some further insights into a few more cases in which difficulty in the H-1B process led to lawsuits.

InspectionXpert Corporation v. Cuccinelli

An employer seeking to hire a Quality Engineer at their company challenged an H-1B petition denial in April 2018, asserting that the agency did not have grounds to deny it. USCIS had claimed that the position offered did not qualify as a specialty occupation, as the degree required was in “Mechanical Engineering, Computer Science, or a related technical or engineering field.” The agency asserted that engineering as a whole was too broad of a field, and thus denied the petition. A federal judge rejected that argument, ruling that the position was in fact a specialty occupation, regardless of the fact that multiple subspecialties of engineering could qualify a potential candidate.

MadKudu Inc., et al. v. USCIS

This 2020 lawsuit challenged a USCIS adjudication practice that determined whether or not market research analyst jobs qualify as specialty occupations. The plaintiff also claimed that USCIS had misinterpreted the Occupational Outlook Handbook, a source published by the Department of Labor’s Bureau of Labor Statistics that provides information on hundreds of different types of jobs available in the United States. The agency’s misinterpretation led to H-1B petitions being inaccurately denied, the plaintiff argued. USCIS had denied at least 66 market research analyst petitions in the preceding three years. A federal judge granted the employers class certification in the lawsuit, providing a path forward in future matters.

Acquia Inc, et al., v. USCIS

A group of seven employers filed a suit against the agency in March 2021, claiming that USCIS had unlawfully and arbitrarily rejected their H-1B petitions. The petitions, filed after October 1, 2020, were rejected solely because the beneficiary’s start date also fell after October 1. However, there was no legal basis for the agency to do so, as there are no laws stating that employment must start exactly on October 1st and not a day later. The lawsuit was ultimately dismissed by the employers after USCIS agreed to correct their error.

Humane Society Of New York et al v. Mayorkas et al.

In May of this year, a lawsuit was filed by a group of nonprofit organizations and trade groups challenging a Trump-era rule that favored higher-paying jobs in the H-1B selection process, replacing the random, computer-generated lottery system that has been used for decades. Additionally, the plaintiffs claimed that former acting Secretary of Homeland Security Chad Wolf did not have the authority to issue the new rule, as he was not appointed by the correct line of succession. While the rule was originally to go into effect in March, the Biden administration pushed its start date to December to further test and develop the changes.