A Question of Eligibility
The Ninth Circuit released its opinion on December 16, 2020 in Innova Solutions, Inc. v. Baran, which concerned a technology corporation, Innova, which decided to recruit an Indian employee in the Computer Programmer specialty profession, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No.19-16849, *4. USCIS dismissed the petition arguing that Innova failed to explain that a specialty occupation is the job of Computer Programmer. Id. at 5-6. USCIS relied heavily on the Occupational Outlook Handbook (OOH) of the Department of Labor, which states that "many computer programmers have a bachelor's degree," suggesting that some people working as computer programmers do not have bachelor's degrees. Id.
The U.S. District Court for the Northern District of California heard the case in 2018 and held that the position of programming analyst, categorized under the OOH Computer Programmer category, did not qualify as a specialty occupation because the OOH Computer Programmer definition specified only that "most" computer programmers have a bachelor's degree, but "some employers hire employees" with an associate’s degree.
An Overturn to the USCIS
The Ninth Circuit overturned the grant of summary judgment to USCIS by the District Court, and remanded the case, holding the denial of the visa by USCIS was arbitrary and capricious. The court first analyzed the language of the OOH, holding that the rejection of the petition by USCIS was arbitrary and capricious on this basis. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court contrasted the OOH statements that "most computer programmers have a computer science bachelor's degree or a related subject" and a bachelor's degree is the "typical level of education that most employees need to enter" with the occupation of computer programmers in the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A). This requires that the minimum education required for the occupation is "normally" a bachelor's degree. Id. The court found that between these two definitions there was no appreciable distinction, stating that: "there is no clarity between typically needed, according to the OOH, and normally required, according to regulatory criteria." Id. "In view of the agreement between the two requirements, the court found that the denial of the USCIS visa based on the OOH criteria was arbitrary and capricious, lambasting the reasoning of USCIS as "beyond saving" and stating that "there is no "rational link" between the only source cited by USCIS, which suggested that most computer programmers have a bachelor's degree and that a bachelor's degree is typically a bachelor's degree and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.
Similarly, the court was unpersuaded by USCIS's claim that OOH language claiming that "some employers hire employees with an associate's degree" suggests that the job usually does not require a bachelor's degree. At 10, Id. "In fact, the court argued, this language is entirely compatible with the regulatory criteria, which only requires that a bachelor's degree be required for entry into an occupation "normally" and not "always. Id. Although agencies are entitled to deference in interpreting their own ambiguous regulations, the court held that this regulation is not ambiguous and that deference to such an unplausible interpretation is unjustified, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), limiting Auer's deference to "genuinely ambiguous" rules. Id. at 10-11.
The court also held that the rejection by USCIS was arbitrary and capricious because the language in the OOH was mischaracterized by it. Id. at *12-13. "The USCIS decision argued that the OOH specified that "the profession of [computer programmer] requires a wide range of educational qualifications to qualify, including the degree of an associate," when in reality it merely states that "[m]ost computer programmers have a bachelor's degree in computer science or a similar subject; however, some employers recruit employees with an associate's degree." Id. at 13. Although it understood that "a factual error is not necessarily fatal to an agency decision," in this case, the court found that the misconstruction of the OOH language by USCIS was arbitrary and capricious since whether or not computer programmers typically have a bachelor's degree was fundamental to the decision of USCIS. Id.
Finally, since it refused to consider crucial facts, the court considered USCIS's decision arbitrary and capricious. Id. on *14. The court argued that the OOH language was prominently featured on the OOH landing page and of central importance to the determination of the USCIS, arguing that a bachelor's degree is the "[t]ypical level of education that most workers need" to become a computer programmer, but the USCIS failed to mention this language in its decision. Id.
A Victory for U.S. Tech Companies
While the Innova Solutions decision of the Ninth Circuit is undoubtedly a victory for U.S. technology companies that employ foreign employees as computer programmers, the decision also has broader implications. For one, the decision is a refreshing rebuttal to the longstanding tradition of USCIS on specialization occupation grounds of challenging computer programming. USCIS released a policy memorandum on March 31, 2017 that rescinded the earlier 2000 guidance recognizing the status of computer programmer as a specialty occupation. The policy memorandum of 2017 relied on the new terminology in the OOH as the basis for the previous guidelines being rescinded. Importantly, the Ninth Circuit in Innova Solutions concluded that this same OOH terminology does not contradict the 8 C.F.R. 214.2(h)(4)(iii)(A) regulatory requirements, essentially undercutting the reasoning of the USCIS for issuing the 2017 memorandum.
First Recently Recorded Case in Favor of H-1B Applicant
In addition, the first recently recorded circuit court case in which the court ruled in favor of the H-1B applicant is Innova Solutions. The USCIS has been historically preferred by other landmark circuit court cases. For example, in Defensor v. Meissner, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it hired on the grounds that the final hospital where the nurses were placed was actually the supervising body, and that no evidence indicated that these hospitals needed the nurses to have bachelor's degrees. Defensor v. Meissner, F.3d, 201 (5th Cir. 2000). In Defensor, the court held that the requirements set out in 8 CFR § 214.2(h)(4)(iii)(A) are merely essential conditions, rather than necessary and adequate conditions, for determining that a job is a specialty occupation, a decision often referred to in H-1B RFEs by the USCIS. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of the role of USCIS that greater weight than a generic degree requirement should be accorded to a position that requires a degree in a particular discipline similar to the duties and obligations of the work. Royal Siam Corp v. Chertoff, F.3d 484 139 (First Cir. 2007). Thus, Innova Solutions is a rare and welcome win in the circuit courts for H-1B petitioners.
The decision of the Ninth Circuit is in line with a number of recent lower court decisions in which H-1B petitioners have successfully challenged the rejection of H-1B petitions by USCIS, in contrast to other circuit court cases, on the grounds that the job in question did not qualify as a specialty occupation. The Ninth Circuit tells USCIS in Innova Solutions, as the various lower court rulings have done, that the OOH should not be used as a Holy Grail to refuse H-1B petitions based on the petitioner's well-reasoned claims and corroborated by substantive facts, including expert opinions.