Yet another win for Indian H-1B holders as appeals court reverses USCIS decision for visa denial

This particular case involved an individual firm Innova Solutions, who had filed a lawsuit against the USCIS in 2018 in the Northern District Court of California.

Innova Solutions had filed an H-1B petition, a specialty occupation visa in the US, for Indian citizen Dilip Dodda for the position of a Programmer Analyst between August 2017 and October 2020. He holds a bachelor’s degree in Electrical & Electronics Engineering.

However the USCIS denied the petition in December 2017 stating that the company failed to establish that it is a specialty occupation using the Occupational Outlook Handbook (OOH).

The USCIS, based on the OOH, considered that when an occupation of computer programmers need not require a bachelor’s degree, it cannot be a specialty occupation. OOH states that for a computer programmer position, either requires bachelors or even an associate degree in the computer related field.

The USCIS interpretation was that if an associate degree is enough for the position, it cannot be a specialty occupation. Since programmer analyst falls under computer programmer category, it cannot be a specialty occupation requiring H-1B.

Innova Solutions filed a lawsuit on grounds that the USCIS acted “arbitrarily and capriciously and abused its discretion.” However the court ruled in favour of the USCIS.

In the order dated 2019, the Court ruled that, “Innova has not shown that USCIS's denial of its petition was arbitrary and capricious or an abuse of discretion.”

Innova appealed it in the Ninth Circuit Court of Appeals. The three judge panel ruled in favour of the H-1B petitioner.

In an order dated December 16, 2020, Judge John B Owens reversed the district court judgement and concluded that USCIS’s denial was arbitrary and capricious. According to Judge Owens, the USCIS misinterpreted the OOH and arbitrarily denied the visa.

What does it mean for the Indian H-1B workers?

Two immigration experts, Cyrus Mehta and Kaitlyn Box, in a blog, pointed out that this decision has broader implications.

This is not the first time the USCIS has denied petitions on grounds that computer programmers are not specialty occupations. “…the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds,” the blog read.

Given that Indians are the largest beneficiaries of the visa, such decisions had huge impact on them and also the companies that are hiring. The Circuit’s decision also throws light on the need to limit the USCIS’ discretion in interpreting the OOH rules to deny meritorious H-1B petitions.

With the President-Elect Joe Biden set to take charge next month, there are hopes that arbitrary denials at least are behind them!