USCIS’ Unlawful Denial of H-1B Petitions Spurs Class Action Lawsuit

USCIS’ Unlawful Denial of H-1B Petitions Spurs Class Action Lawsuit

MadKudu Inc., et al. v. USCIS, et al., Case 5:20-cv-02653 (N.D. Cal. filed April 16, 2020)

STATUS:
Closed

This nationwide class action lawsuit challenges U.S. Citizenship and Immigration Services’ (USCIS) pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by United States businesses.  

The complaint alleges that USCIS unlawfully denies H-1B petitions for market research analysts by misinterpreting the term “specific specialty” in the statute and the word “normally” in the first regulatory test.  In applying the first regulatory test, USCIS also misinterprets the Occupational Outlook Handbook—a publication of the U.S. Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States job market—on which USCIS relies.

The lawsuit was filed at the federal district court in the Northern District of California by the American Immigration Council, the American Immigration Lawyers Association, and the law firms Berry Appleman & Leiden LLP (formerly Joseph & Hall P.C.), Kuck Baxter Immigration LLC, and Van Der Hout, LLP.

On May 4, 2020, the original plaintiffs filed a motion to certify the class. One week later, USCIS approved the original plaintiffs’ H-1B petitions. On June 29, defendants filed a motion to dismiss, claiming the plaintiffs no longer had legal capacity to sue because the H-1B approvals gave them the individual relief they requested, which plaintiffs opposed. On July 20, the two original plaintiffs and two new plaintiffs filed an amended complaint and an amended motion to certify the class.

Defendants filed a new motion to sever and to dismiss, which plaintiffs opposed.  The court denied defendants’ motion and later granted plaintiffs’ motion for class certification. In early 2021, plaintiffs moved to amend the class definition. After the parties agreed upon the administrative record, plaintiffs filed a motion for summary judgment.

Briefing on the motions  was extended temporarily as the parties entered settlement negotiations. On August 20, 2021, the parties reached a settlement and filed a joint motion with the court seeking approval of their settlement agreement and requesting that the court schedule a fairness hearing.

Settlement

On August 30, 2021, the court preliminarily approved the parties’ settlement agreement. The court scheduled a fairness hearing for October 19, 2021, and class members had until October 4, 2021 to file objections to the proposed settlement agreement. 

The settlement agreement was approved by the court on October 19, 2021. To be a class member, a U.S. employer must have filed a market research analyst H-1B petition during the period from January 1, 2019 through October 19, 2021, which USCIS denied based on a finding that the OOH entry, as it existed on October 19, does not establish that market research analyst is a “specialty occupation,” and thus does not satisfy 8 C.F.R. § 214.2(h)(4)(iii)(a)(1), as it existed on October 19, and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved.

For more information about the settlement agreement, please read our Frequently Asked Questions, which includes a copy of the final agreement. 

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