Key Points
  • The US Court of Appeals for the 9th Circuit Court reversed a district court’s grant of summary judgment for USCIS
  • The court ruled that USCIS’s denial of plaintiff’s H-1B specialty occupation application was arbitrary and capricious
  • The court ruled that USCIS unlawfully denied an H-1B specialty occupation application based on its interpretation of OOH and CFR language
  • The court determined that a bachelor’s degree meets minimum education requirements for a specialty occupation
Overview

The U.S. Court of Appeals for the Ninth Circuit Court in California has reversed a district court’s grant of summary judgment for USCIS, ruling that the Occupational Operation Handbook (OOH) states that a bachelor’s degree generally satisfies H-1B criteria for specialty occupations, and that it is arbitrary and capricious for USCIS to determine otherwise.

On December 18, 2020, the Ninth Circuit Court reversed and remanded a district court’s grant of summary judgment for USCIS. The Ninth Circuit Court ruled that the USCIS’s denial of an H-1B visa petition filed by Innova Solutions (the plaintiff) was arbitrary and capricious. USCIS denied the plaintiff’s H-1B visa petition on the basis that the offered position of Computer Programmer was not a “specialty occupation.” The agency claimed that the proffered position did not have the minimum educational requirement to apply for a specialty occupation. USCIS noted that while the Occupational Outlook Handbook (OOH) notes that “most” Computer Programmers have a bachelor’s or associate’s degree in the field of computer science, it does not state that a bachelor’s degree or its equivalent in a specialty occupation is “normally” the minimum requirement for a specialty occupation. USCIS consequently determined that a bachelor’s degree is not “typically” needed for a specialty occupation.

The Ninth District Court ruled that denial of the H-1B visa was arbitrary and capricious for several reasons. First, the court determined that there is no difference, and therefore no ambiguity, in “typical” requirements as stated in the OOH compared to “normal” educational requirements as stated in the regulations. Additionally, USCIS stated that according to OOH language, most Computer Programmers have either a bachelor’s degree or an associate’s degree. The court determined that contrary to the agency’s argument, the OOH says that most Computer Programmers have a bachelor’s degree. Finally, USCIS failed to consider key evidence that a bachelor’s degree is typically required for workers to enter the occupation.

Further elaborating, the court explained that USCIS misrepresented the OOH by stating that most Computer Programmers have a bachelor’s or associate’s degree, when the OOH states that most Computer Programmers have a bachelor’s degree. Additionally, USCIS did not consider the handbook’s language that a bachelor’s degree is the “typical” level of education that most workers must have to become Computer Programmers. In its application denial, USCIS also cited OOH language that “some” employers hire Computer Programmers with an associate’s degree. However, its argument was rejected by the Ninth Circuit court, which argued that “some” equates to “normally” for minimum education requirements for Computer Programmers as stated in the Code of Federal Regulations. The court added that contrary to USCIS’s argument, there is no ambiguity in language between the OOH and CFR.

Looking Ahead

The government may appeal the court’s decision. Updates will be provided as available.


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