Class Action Settlement Gives Second Chance to Qualifying US Employers for H-1B Petition Approval

by Leslie Dellon

A recent class action settlement is expected to result in U.S. Citizenship and Immigration Services (USCIS) approving more market research analyst H-1B petitions.

The lawsuit was filed by four U.S. employers whose H-1B petitions had been denied when USCIS determined that market research analysts were not a “specialty occupation” as required for an H-1B visa classification. Jobs in the H-1B category require a worker to possess highly specialized knowledge acquired through a bachelor’s or higher degree in a “specific specialty” or equivalent at the entry level. USCIS based its determination on a flawed interpretation of the market research analyst entry in the Occupational Outlook Handbook, a Department of Labor publication that includes information about how to enter an occupation.

The plaintiffs requested relief for themselves and other U.S. employers like them whose petitions USCIS would have approved if the agency had not made this decision about the OOH market research analyst entry.

If a U.S. employer can establish that it is a MadKudu class member, USCIS will reopen and re-adjudicate the denied H-1B petition if there is time left in the validity period of the certified Labor Condition Application (LCA) submitted with the denied petition. USCIS officers will re-adjudicate such denied H-1B petitions and adjudicate pending and future H-1B petitions using forthcoming guidance.

Per the settlement agreement, the new guidance will address the first regulatory criterion and the OOH entry for market research analyst, the statutory and regulatory definition of “specialty occupation,” and related considerations in determining whether a petitioner’s job is within the market research analyst occupation.

Potential class members will have 180 days to file a request to reopen. The 180-day time period starts when USCIS announces on its website the directions for filing. However, potential class members should file as early as possible within the 180-day period to minimize the risk of the LCA expiring before the request is filed.

To be a MadKudu class member, a U.S. employer must meet the following requirements.

  • The market research analyst H-1B petition was filed with USCIS during the period from January 1, 2019 through October 19, 2021.
  • USCIS denied the petition based on a finding that the OOH entry for market research analyst (as it exists on October 19, the date the court approved the settlement agreement) does not establish that market research analyst is not a specialty occupation, and thus does not meet the first regulatory criterion (as it exists on October 19).
  • But for this finding, USCIS would have approved the H-1B petition.

The MadKudu class action settlement is a milestone in employment-based immigration lawsuits. It provides an opportunity for many employers, rather than just one, to benefit after challenging a petition denial. But no relief would have been possible without the named plaintiffs, who were willing to sue.

This post originally appeared on Immigration Impact Reprinted with permission.

About The Author

Leslie Dellon is Policy Counsel at the American Immigration Council, where he works primarily on immigration court issues and the intersection of immigration law and policy. He previously worked as a Staff Attorney at the Council, working on impact litigation, Freedom of Information Act litigations, and practice advisories. Prior to joining the Council, he was an Immigrant Justice Corps Fellow placed as a Staff Attorney at the Immigration Law Unit of The Legal Aid Society in New York City, representing immigrants placed in removal proceedings because of a prior criminal conviction. Aaron holds a J.D. from the Georgetown University Law Center and a B.A. in Politics and East Asian Studies from Brandeis University.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.