As Trump’s Reign Draws to a Close, Prospects for Indian High Skilled Workers Brighten

Recently, there have been a series of wins in favor of H-1B visa petitioners in U.S. courts. In another such major win for H-1B workers, on December 16, 2020, a unanimous three-judge panel on the Ninth Circuit Court of Appeals ruled that computer programming can be considered a specialty occupation, stating that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer was “arbitrary and capricious.”

New York-based immigration attorney Cyrus Mehta cheered the ruling. In a blog post, Mehta said, “While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s long standing practice of challenging computer programming on specialty occupation grounds.”

The Indian American attorney noted that this was the first time a circuit court has ruled in favor of the H-1B petitioner, adding that petitioners have won similar decisions in lower courts.

In March 2017, under the backdrop of President Trump’s “Buy American, Hire American” ethos, USCIS released a memo stating that computer programming would no longer be considered a specialty occupation. The agency noted that some programmers hold only an associate degree or less.

As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation,” noted the USCIS memo.

Current law requires H-1B workers to possess a bachelor’s degree or higher, with academic credentials specifically related to their prospective job duties.

Neha Mahajan, RJ and vice-president of Skilled Immigrants in America says, “this falls in line with the BAHA rule,” adding, “when Trump came into power, one of the first things the administration did was to introduce BAHA – Buy American Hire American. We didn’t know at that point in time what to expect or how USCIS was going to react. We didn’t know how they were going to interpret it or how they were going to change things for those on H1B. Soon we realized BAHA became a way for USCIS to interpret the rules differently. Up until now, the rule books were pretty ambiguous and open to interpretation and USCIS and policy makers had been liberal up till then in implementing the rules. And then we started seeing, in how USCIS viewed and interpreted the BAHA rule, that something as simple as a visa extension would only work with litigation. Suddenly, we saw computer programming, which is a niche, was not considered so. Suddenly so many new rules came into place, where if someone had, for example an electronic engineering degree, was no longer suitable for a computer programming role, although the person had been working in that role for the longest time.”

In 2017, USCIS had denied an H-1B visa to Dilip Dodda who was scheduled to work for Santa Clara, California-based Innova Solutions as a programmer analyst. USCIS noted that computer programming was not a specialty occupation.

In 2017, USCIS had denied an H-1B visa to Dilip Dodda who was scheduled to work for Santa Clara, California-based Innova Solutions as a programmer analyst. USCIS noted that computer programming was not a specialty occupation.

Dodda, who holds a bachelor’s degree in Electrical & Electronics Engineering, had more than 10 years of experience in computer programming. Innova had planned to assign him to work for one of its clients, Change Healthcare Operations. Dodda would provide consulting services on Change Healthcare’s patient billing and payment system, which required knowledge of several programming languages.

However, USCIS noted in its response to the lawsuit that Innova had stated in its Labor Certification Application that the position in question was a “Wage Level 1 entry position.”

Innova provided USCIS a list of about 14 functions that Dodda would perform, including writing script, testing beta sites, performing initial debugging, and rewriting code to fix buggy sites. USCIS nonetheless denied Innova’s petition for Dodda.

In its lawsuit, Innova contended that USCIS failed to properly consider the evidence and did not articulate any reasonable basis for its decision. It stated that the agency’s decision therefore must be set aside as arbitrary, capricious, and an abuse of discretion.

Mahajan supports this as she adds, “USCIS without giving clarity was undermining the skillset of workers on H1B, who are experts in their field. In my opinion that is what has worked in H1B’s favor here.”

In 2019, United States Magistrate Judge Virginia Demarchi denied Innova’s lawsuit against USCIS, ruling that Innova had not sufficiently established that Dodda was to be engaged in a specialty occupation.

Demarchi said in her ruling that USCIS had noted that even interns could be classified as computer programmers. She ruled in favor of USCIS, stating that Innova failed to submit sufficient evidence “showing the unique or complex nature of the position, or how this position differs from other similar positions within the same industry.”

Innova appealed the lower court’s decision. Judge John Owens, writing for the three-judge panel at the Ninth Circuit, noted that USCIS relied solely on the Labor Department’s Occupational Outlook Handbook, which states that most computer programmers normally have attained a bachelor’s degree or higher, and that a bachelor’s degree is the typical level of education most programmers need to enter the field.

“USCIS’s decision in light of that evidence was arbitrary and capricious,” ruled Owens. “It offered an explanation for its decision that ran counter to the evidence before it.”

A U.S. employer who wants to sponsor employees under the H-1B program is required to show that the job position required ‘theoretical and practical application of a body of highly specialized knowledge’, and that ‘a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into that particular position.’

Innova provided USCIS a list of about 14 functions that Dodda would perform, including writing script, testing beta sites, performing initial debugging, and rewriting code to fix buggy sites. USCIS nonetheless denied Innova’s petition for Dodda.

In its lawsuit, Innova contended that USCIS failed to properly consider the evidence and did not articulate any reasonable basis for its decision. It stated that the agency’s decision therefore must be set aside as arbitrary, capricious, and an abuse of discretion.

In 2019, United States Magistrate Judge Virginia Demarchi denied Innova’s lawsuit against USCIS, ruling that Innova had not sufficiently established that Dodda was to be engaged in a specialty occupation.

Demarchi said in her ruling that USCIS had noted that even interns could be classified as computer programmers. She ruled in favor of USCIS, stating that Innova failed to submit sufficient evidence “showing the unique or complex nature of the position, or how this position differs from other similar positions within the same industry.”

Innova appealed the lower court’s decision. Judge John Owens, writing for the three-judge panel at the Ninth Circuit, noted that USCIS relied solely on the Labor Department’s Occupational Outlook Handbook (OOH), which states that most computer programmers normally have attained a bachelor’s degree or higher, and that a bachelor’s degree is the typical level of education most programmers need to enter the field.

“USCIS’s decision in light of that evidence was arbitrary and capricious,” ruled Owens. “It offered an explanation for its decision that ran counter to the evidence before it.”

According to Mehta’s blog, “Innova Solutions represents the first recently reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.”

Mehta added that “The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.”

This latest ruling is yet another blow for the Trump administration, which recently saw an attempt to raise H1-B visa salaries thrown out by a federal court.

Earlier this month, Workpermit.com reported on how the Department of Homeland Security (DHS) described the need for higher salaries as a ‘high priority’ amid the coronavirus pandemic and widespread job losses among American citizens. 

The DHS estimated that around one-third of people who have applied for US H1-B visas recently would have been denied under the proposed rules.

Prior to his election loss, Trump announced the proposed H1-B visa rules as part of wider plans to further restrict all immigration to the U.S. In June, Trump ordered a total temporary ban on US work visas, including the H1B visa, scheduled to last until the end of 2020 at least.

Following Trump’s H1-B visa proposals, the U.S. Chamber of Commerce and several U.S. universities – including the California Institute of Technology – had sued the Trump administration, claiming that no warning was given about the changes and time wasn’t given for public comment.

Summing up this immigration victory for South Asian and Asian American skilled workers, Mahajan says, “This is welcome news for the entire H1-B community. Till now the community has been feeling they are being scrutinized and penalized for being skilled labor. It is definitely a sigh of relief for many!”