USCIS entered into a settlement agreement in Madkudu v. USCIS that may signal changes in how USCIS will determine which positions qualify as a “specialty occupation” for H-1B purposes. During the Trump Administration, USCIS often denied cases because more than one degree would meet the requirements for the position. The Madkudu case specifically puts that to rest — at least for Market Research Analysts.
Madkudu was certified as a class action and was filed by companies whose H-1B petitions for Market Research Analyst positions were denied based on the USCIS’ interpretation of that job’s description in the Bureau of Labor Statistics Occupation Outlook Handbook (OOH). USCIS determined that because the OOH listed a variety of degrees rather than one specific degree that would be appropriate for a Market Research Analyst position, the position did not qualify as a “specialty occupation.” The plaintiffs argued that was a misinterpretation of the OOH and the statutory requirements and sought summary judgment. The court stayed briefing because the parties were negotiating and reached a settlement agreement.
Under the settlement, employers who filed H-1B petitions for Market Research Analysts between January 1, 2019 and October 19, 2021 could ask to have their cases reopened (without fee) if:
- The case was denied because the OOH entry for the Market Research Analyst position did not establish that the occupation was a specialty occupation;
- If not for that finding, the case would have been approved; and
- At the time of the request for reopening, there is time remaining on the period specified in the certified Labor Condition Application submitted with the original application.
Class members will have 180 days from October 19, 2021 until mid-April 2022 to file a reopening request.
Based upon the settlement, the USCIS’ new guidance for adjudicators will indicate that degrees in business administration, communications, statistics, computer and information technology and/or social science with relevant majors, minors or specializations related to market research analysis will qualify for H-1B visa status and not be considered “generalized” or unrelated degrees.
While this case may come too late for some who have had to seek other work or leave the United States, other petitioners and beneficiaries whose cases were denied may find this useful. Moreover, the new guidance will be applied in cases going forward for at least five years based upon the settlement agreement.