When an officer decides the merits of an H-1B application, he or she considers the statutes, regulations and the USCIS internal policies. In many cases the internal policies of the Immigration Service are not consistent with the statutes and regulations, in this case those governing the definition of specialty occupations. In a recent case I filed with the Federal District Court, my client challenged the definition of Accountant as it is (erroneously) applied by the California Service Center of USCIS. The challenge was successful!
USCIS has repeatedly denies H-1B visa petitions claiming that the Petitioning employer is actually seeking a bookkeeper; not an accountant. The Department of Labor, in its Dictionary of Occupational Titles, draws significant distinctions between accountants and bookkeepers with an emphasis on application of accounting principles to prepare financial reports as well as day to day business of maintaining general ledgers and implementing procedures for maintaining accounting control procedures.
Despite the fact that applications will show in detail how the duties of the proposed position are wholly consistent with the legal definition of accountant (as defined) the Service still declares the position to be a bookkeeper's position and ineligible for specialty occupation status needed for an H-1B application. To make matters worse, Petitioners often find additional obstacles in filing of the administrative appeals with unjustified failures to review their motions to reconsider and or appeals to the Administrative Adjudications Office.
In the above-reference case, after filing a complaint with the Federal District Court, the Service agreed to re-open the case and consider additional evidence provided by the employer with regard to the duties of the employee. This "second look" was a phenomenal opportunity for the employee; and ultimately, the case was approved!
The above is an excellent example of where an employer and immigrant who are not afraid to seek a fair adjudication of his visa application can get a "fair shake". In my opinion, this result was due in part because the Immigration Service does not want to have its internal policies changed or scrutinized by the Federal Court. Humbly, I also think it was a product of excellent lawyering.
There is nothing wrong with challenging policies of the Immigration Service. In fact, it is the essence of our legal system and reveals once again that the system of checks and balances actually works! The discussion of the above case and its outcome is no guaranty of how your own case may be decided. Every case has its own facts and circumstances which will certainly affect the outcome. The above discussion does show, however, that even if your case is denied by the service, you may have options.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly, managing its Beverly Hills Office. Mr. DuPont is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont has successfully prosecuted several immigration cases through the Federal District Court and Ninth Circuit Court of Appeals which have resulted in positive changes to regulations, policies and practices of the Immigration Service. He currently assists clients seeking to immigrate through family petitions, employment, extraordinary ability in the arts, athletics, sciences and entertainment. Mr. DuPont is well known in the legal community for his work compelling action on delayed cases or wrongfully denied immigration cases in the U.S. District Court.