Ambiguous Language: USCIS Loses Appeal against Tech Company
By: Rachel Horner
Innova Solutions Inc. recently went to court against USCIS for the rejection of an H-1B visa, specifically for a Computer Programmer position. While rejections are not out of the norm, the argument behind the refusal and what transpired made this court case particularly interesting.
Innova originally petitioned for an H-1B petition for an individual with a bachelor’s degree. They used the OOH handbook to make the call that the candidate’s education contributed to their specialized knowledge, as OOH states that a bachelor’s degree or higher is typically the minimum requirement for entry into said position.
However, USCIS denied the visa because they believed that since those holding computer programmers positions typically have a bachelor’s degree, it means that not all those with the computer programmers have a bachelor’s degree. USCIS further stated that since not all candidates have a bachelor’s degree, then the position cannot be said to normally require a Bachelor’s degree, and therefore, the position could not be defined as a specialty occupation.
Innova Solutions Inc. countered that USCIS’ definition of normal was arbitrary at best; normal was almost exactly the same as typical, and should not be interpreted to mean “always” having a bachelor’s degree. In court, the jury also came to the same conclusion. According to the transcript of the court case, the panel came to the conclusion that “there is no daylight between typically needed, per the OOH, and normally required, per the regulation, and that USCIS’s suggestion that there is ‘space’ between these words is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The panel also explained that the regulation is not ambiguous and deference to such an implausible interpretation is unwarranted.
The final verdict: USCIS could not exploit perceived ambiguities in language and come up with their own definition. Specifically, if they are to believe a bachelor’s degree is not a requirement of the computer programmer position, OOH itself needs to explicitly say that computer programmers do not require a bachelor’s degree 100% of the time, which is not what it says at the current moment. Crucially, the verdict forms another protective layer around the concept and definition of specialty occupation, which has been under fire for much of the latter half of 2020, and which immigration attorneys hope will experience less scrutiny under the upcoming Biden administration.