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:
Pending

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 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.

Proposed Settlement

On August 30, 2021, the District Court preliminarily approved the parties’  settlement agreement. The court scheduled a fairness hearing for October 19, 2021. Class members have until October 4, 2021 to file objections to the proposed settlement agreement. The proposed settlement provides a remedy for class members who filed market research analyst H-1B petitions on or after January 1, 2019, which USCIS denied on the ground that the OOH does not establish that market research analyst is a “specialty occupation” under 8 C.F.R. § 214.2(h)(4)(iii)(a)(1) and, but for USCIS’ finding regarding the OOH entry for market research analyst, the H-1B petitions would have been approved.

Follow this case:

  • April 16, 2020
    The American Immigration Council, the American Immigration Lawyers Association, and the law firms Van Der Hout, LLP, Joseph & Hall P.C., and Kuck Baxter Immigration LLC filed a nationwide class action lawsuit today challenging U.S. Citizenship and Immigration Services’ pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analysts positions filed by businesses in the United States.

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