H1B Employers May Have Another Shot at Filing for Denied Market Research Analysts- Class Action Suit Settled With USCIS

H1B Employers May Have Another Shot at Filing for Denied Market Research Analysts – Class Action Suit Settled With USCIS


Dev B. Viswanath

It’s a bright new era for H1B employers and employees who may have been affected by stringent and restrictive interpretations by USCIS during the past 2 years. The federal district court in the Northern District of California has approved a settlement in a class action lawsuit challenging U.S. Citizenship and Immigration Services’ pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by petitioning employers in the U.S.  The crux of the issue arose from USCIS adamant position that Market Research Analysts were NOT specialty occupations.  But,  this new settlement opens the door for an opposite understanding.

The parties in MadKudu Inc. v. USCIS reached a settlement agreement that addresses the USCIS’s misinterpretation of the Department of Labor’s Occupational Outlook Handbook which discusses and articulates the understanding and outlook for hundreds of occupations in the U.S. job market. Based on its prior interpretation of the OOH, USCIS erroneously and incorrectly determined that market research analysts did not qualify as a “specialty occupation.” The settlement agreement changes this agency error and provides U.S. employers who qualify the opportunity to request that USCIS reopen and re-adjudicate their denied H-1B petitions.  In theory, USCIS should be reopening the matters on their own, based on “agency error.” However, in order to address the practical issues involved with sua sponte (on their own) action, employers can make motions to reopen and reconsider previous denials whereby the basis for the denial was because of this incorrect understanding by USCIS on whether Market Research Analysts were in fact “specialty occupations”, for purposes of H1B petitions.

The defined class or group of entities that would qualify for benefit from this settlement are U.S. employers who filed a market research analyst H-1B petition during the time period from January 1, 2019 through October 19, 2021. Moreover, the agency MUST have then denied the petition based on a finding that the OOH description of this position as it existed on October 19, 2021, failed to establish that market research analyst is a “specialty occupation,” and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved. For older denials, this is going to be where the case was solely denied for that reason.  But on much more recent denials if the motion is still within a timely filed position, there could be additional grounds that are being addressed, and while this settlement may not directly apply, the outcome can be used in the motion.

There is an additional implication here, which is about other areas of occupations where they seemed to be a systematic move by USCIS to deny the H1B petitions and employers may be in a position to use this settlement or the arguments or discussions from this settlement to overcome or address other H1B denials.  Any employers who are questioning whether their H1B petition was denied incorrectly, should consider contacting an experienced Immigration Practitioner immediately.