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.

On August 4, defendants filed a new motion to sever and to dismiss, which plaintiffs opposed. Defendants claimed that each plaintiff had to challenge its H-1B petition denial separately. Defendants again argued that the two original plaintiffs should be dismissed because their H-1B petitions had been approved. Defendants also asked the court to dismiss the two new plaintiffs because they did not have a connection to the Northern District of California.

On September 14, the Court denied defendants’ motion. First, the Court found that since the four plaintiffs claim a pattern and practice of arbitrary and unlawful denial of H-1B petitions for market research analysts, their cases are sufficiently related to be part of a single lawsuit. Second, the Court concluded that USCIS could not avoid the lawsuit by approving Plaintiffs’ H-1B petitions when it did and that the two original plaintiffs’ claims were not resolved by the approvals. The Court recognized that plaintiffs sought a declaration from the Court that defendants’ practices were unlawful on behalf of a class, separate and apart from each company’s interest in having their H-1B petitions approved. Finally, the Court concluded that the two new plaintiffs could be part of the lawsuit because only one plaintiff—in this case, an original plaintiff—had to be within the Court’s jurisdiction when suing the government or its officers or employees..

On November 17, the Court granted in part plaintiffs’ class certification motion. The Court adopted plaintiffs’ definition of the class, with one exception. As plaintiffs proposed, the class opens with U.S. employers who filed market research analyst H-1B petitions on January 1, 2019. But the Court decided to limit the class to U.S. employers who filed their petitions on or before December 6, 2020. USCIS issued an interim final rule (IFR), which among other changes, removes the word “normally” from the first regulatory test. Unless blocked by a court order, the IFR will take effect on December 7 and apply to H-1B petitions filed on or after that date.

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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