A Big Win For H-1B — Computer Programmer Is A Specialty Occupation
On December 16, 2020, the Ninth Circuit reversed the district court’s grant of summary judgment for the U.S. Citizenship and Immigration Services (USCIS) in Innova Solutions, Inc. v. Baran, and remanded, concluding that USCIS’s denial of an H-1B temporary worker visa was arbitrary and capricious.
Innova Solutions, Inc. (Innova) wanted to hire a citizen of India with a bachelor’s degree as a computer programmer and petitioned for an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “most computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “typical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”
The panel concluded that USCIS’s denial of the H-1B visa petition was arbitrary and capricious. First, the panel explained 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.
Next, the panel concluded that USCIS’s decision was arbitrary and capricious because it misrepresented the OOH by stating that it provides that most computer programmers have a bachelor’s or associate’s degree when, in fact, the OOH provides that most have a bachelor’s degree.
Finally, the panel concluded that USCIS’s decision was arbitrary and capricious because USCIS failed to consider key evidence, namely, the OOH language providing that a “bachelor’s degree” is the “typical level of education that most workers need to enter this occupation.”
There’s no doubt that the Ninth Circuit’s decision in Innova Solutions is a great news for U.S. employers who hire foreign workers as computer programmers. First of all, this decision acknowledges that computer programmer is a specialty occupation, which has been challenged by USCIS since 2017. Furthermore, this case stands as a decision in which the court has ruled in favor of H-1B employers, as the court indicated that USCIS cannot mischaracterizes OOH to deny H-1B petitions.
The Ninth Circuit’s decision in Innova Solutions is available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf
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