Madekudu Inc. and other parties reached a settlement agreement that corrects a misinterpretation of the agency’s Occupational Outlook Handbook (OOH) — a Department of Labor Bureau of Labor Statistics publication that outlines hundreds of occupations in the U.S. job market. Based on its earlier interpretation of the OOH, USCIS erroneously determined that market research analysts do not qualify as ‘specialty occupations’ – only specialized occupations are eligible for H-1B visas. The settlement agreement replaces this agency error and provides an opportunity for US employers to request that USCIS reopen and reschedule their rejected H-1B petitions.
TOI is continuously following the developments in this lawsuit. The paper was the first to report that the two sides had reached an agreement on August 20, 2021, and ten days later, the district court had initially approved the settlement. TOI had also reported that a fair trial would be held in October. Now, the agreement is final.
To be a member of a class, a US employer must have filed a Market Research Analyst H-1B Application from January 1, 2019 to October 19, 2021, the USCIS then based on the OOH entry (as it existed). But the application will be rejected. 19) failed to establish that the market research analyst is a ‘specialty occupation’, and, but for USCIS’s findings regarding the OOH entry, the H-1B petition would have been approved.
The American Immigration Council, the American Immigration Lawyers Association, and the law firms Van Der Hout LLP, Berry Appleman & Leiden LLP (formerly Joseph & Hall PC), and Cook Baxter Immigration LLC represented the plaintiffs.
American Immigration Council Senior Attorney (Business Immigration) Leslie K. “This agreement is a significant victory that will benefit hundreds of US businesses and market research analysts,” Delon said. “The settlement gives US businesses another chance to have their H-1B market research analyst petitions approved — this time under new guidance worked out by the parties to the lawsuit. Each H-1B petition is reopened and approved. Gaya, which will represent another opportunity for American employers and the employees they sponsored to advance their business objectives.”
“I am forever grateful for the courage of class representatives who not only challenged their own denials, but carried the torch to an entire class of employers who had received false H-1B denials. AILA and its members appreciate the expertise of our plaintiffs and our co-attorneys for this incredible act of selflessness,” said Jesse Blaise, director of federal litigation at the American Immigration Lawyers Association.
“This settlement finally resolves an issue immigration lawyers have been grappling with the government for years. This settlement strikes the right balance between what the rules actually say and how employers evaluate a candidate’s professional qualifications in the real world. It is our earnest expectation that USCIS will now interpret other specialized businesses from the perspective of what actually happens in the free market,” said Jeff Joseph, partner at Berry Appleman & Leiden.
“It is unfortunate that the only way for USCIS to comply with the law and do the right thing is to bring litigation. But, know this – we will be looking at USCIS for compliance with this decision, and we will move litigation to other Will be willing to escalate an interpretive violation of written law and regulation that the agency has permitted to occur,” Charles H. Cook, Managing Partner at Cook Baxter Immigration.