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January 5 2021

Good New for H-1B Visas

The Court of Appeals in Innova Solutions v. Baran held the denial of an H-1B visa for a citizen of India with a bachelor’s degree as a computer programmer “specialty occupation” visa on his behalf was illegal.  Under the H-1B regulations, the employer had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.”  Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”

The panel concluded that USCIS’s denial of the H-1B visa petition was arbitrary and capricious and thus illegal.  The court explained that there is no difference between “typically” needed degree per the OOH, and “normally” required, per the USCIS regulation, and that USCIS’s suggestion that there is “space” between these definitions was illegal.

The Trump Administration has tried to narrow the types of degrees allowed for one to qualify for an H-1B visa.  Innova Solutions v. Baran is good news in this area.