U.S. Citizenship and Immigration Services (USCIS) has entered into a settlement agreement in the case of Madkudu v. USCIS, which likely signals significant changes in the qualifications for what is regarded as a “specialty occupation. During the previous administration, many employers found that their H-1B petitions would be rejected when more than one degree might qualify an individual for a position. However, this case puts this issue to rest, at least in certain cases.
The Madkudu case was filed by several companies whose petitions for market research analyst positions were denied by the USCIS. The case was subsequently certified as a class action. These denials were based upon the agency’s interpretation of the qualifications of the position provided in the Bureau of Labor Statistics Occupation Outlook Handbook (OOH), which identified multiple different degrees that could qualify an individual for the position. As a result, the agency felt that this precluded the position from qualifying as a specialty occupation, which is required for an employer to petition for an H-1B worker to fill it.
The plaintiffs, in this case, argued that this interpretation of the OOH was in violation of the statutory requirements and requested summary judgment. However, the court stayed brief due to ongoing negotiations between the plaintiffs and the USCIS, which eventually resulted in a settlement agreement.
This settlement permits employers that filed petitions for Market Research Analysts between January 1st, 2019 and October 19th, 2021, to request reopening of their cases free from typical filing fees if they meet certain conditions. These include:
Those wishing to take advantage of this settlement will have until mid-April 2022 to file a request for the USCIS to reopen their case.
Perhaps most importantly for employers, though this settlement will result in the USCIS issuing new guidance for adjudicators that will indicate that degrees in communications, statistics, computer and information technology, business administration, and/or social science with a relevant specialization, minor, or major that is related to market research analysis will not be considered a generalized degree.
The settlement, in this case, may be late for some petitioners that have already been rejected and forced to move on. However, for those that are still submitting petitions with the USCSIS, this is likely a very welcome ruling that broadens the range of potential genres and on conditions of employment that miss results in a ruling that a job is a specialty occupation. This new guidance will remain active for at least five years after the date of the settlement agreement.