Settlement approved in case challenging USCIS’ denial of H-1B petitions for market research analysts

A federal judge in California has approved a settlement agreement in a class-action lawsuit that challenged U.S. Citizenship and Immigration Services’ (USCIS’) practice of denying H-1B petitions for market research analysts.

In the case, MadKudu Inc., et al. v. USCIS, et al., a group of employers alleged that USCIS misinterpreted the Occupational Outlook Handbook (OOH) and wrongly determined that market research analyst did not qualify as a “specialty occupation.” As part of the settlement, the Department of Labor has agreed to interpret the OOH in a way that recognizes that various educational pursuits and degrees can all lead to the specialty occupation of “market research analyst.” Prior to this, USCIS had determined that since many different degrees are acceptable by employers for market research analysts, that, by definition, it is not a specialty occupation. Based on this new guidance, USCIS will accept Motions to Reopen that were adjudicated under the old standard.

Employers will be eligible to submit a Form I-290B, Notice of Appeal or Motion, if:

• They filed a Form I-129 H-1B petition between Jan. 1, 2019, and Oct. 19, 2021, for a market research analyst.
• USCIS denied the petition based on a finding that the OOH entry for a market research analyst did not establish that the occupation is a specialty occupation.
• If not for this finding, USCIS would have approved the petition.

Employers whose petitions meet these criteria have until April 26, 2022, to submit their Form I-290B without a fee. USCIS will make a decision on these appeals within 90 days of receiving them. The agency published filing instructions here.

The plaintiffs in the case were represented by The American Immigration Council, the American Immigration Lawyers Association (AILA) and three immigration law firms, including BAL.

BAL Analysis: The settlement is an important victory for employers had sought to sponsor market research analysts on H-1B visas. The agreement corrects USCIS’ arbitrary practice of denying petitions for workers in these positions. Employers who had a petition denied in the relevant time frame are encouraged to work with BAL to determine whether to file a Motion to Reopen.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2021 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.