2021 is right around the corner, and timely immigration updates may impact broader themes during the COVID-19 pandemic. In this CCIU December Edition: Part III, we provide updates on the H-1B Computer Programmer as a specialty occupation, in addition to proposed deregulatory actions for the incoming administration to consider and information about delays from USCIS lockbox.
Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’
In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.
The court was unpersuaded by USCIS’ reasoning, noting among other things that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’ reasoning “beyond saving.” To read the court case, please see:
- Innova Solutions v. Baran, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf
USCIS Issues Lockbox Updates Regarding Recent Delays
U.S. Citizenship and Immigration Services (USCIS) announced that its lockbox facilities “have received a significant increase in filings in recent weeks.” The increase, along with COVID-19 pandemic-related restrictions, is causing “significant delays for processing receipt notices,” the agency said.
The notice states that USCIS will send a receipt notice to the mailing address provided on a properly filed form “normally within 30 days.” The agency provided several tips for decreasing the time it takes USCIS to process and send a receipt notice, including:
- Filing online
- Creating a USCIS online account and using the case status online tool to check status
- Completing a Form G-1145, Notification of Application/Petition Acceptance, and clipping it to the front of the form to request a text message and/or email when USCIS accepts the form
The notice also includes additional tips for submitting evidence with application packages. For more information please see:
- USCIS Lockbox Updates, https://bit.ly/3rffYIs
Cato Institute Proposes 30 Deregulatory Actions for Biden Administration
The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals “focus entirely on agency measures to improve the process for legal immigrants.”
The report notes that President Trump has reduced immigrant visa approvals by more than 80 percent during his term. The agenda compiled by Cato would “permit more legal migration and legal employment within the confines of the restrictive laws that Congress has passed.” Contributors include several members of the Alliance of Business Immigration Lawyers and other immigration law experts. Their proposals are organized into four sections: reforms affecting green card applicants on the path to permanent residence, reforms affecting nonimmigrants (visitors, students, and temporary workers), reforms affecting refugees, and big-picture reforms affecting more than one category. For more information please see:
- “Deregulating Legal Immigration: A Blueprint for Agency Action,” Cato Institute, https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action
In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy
As a result of litigation in Vangala v. USCIS challenging USCIS’s blank-space rejection policy, where the agency rejected applications because of blank spaces, USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020. According to counsel, the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have had applications rejected.