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IMMIGRATIOn DECEMBER 25, 2020 | The Indian Eye 42

Innova solutions v. Baran:

COmPuter PrOgrammer Is a sPeCIaLtY

OCCuPatION uNDer tHe H-1B vIsa

CYrus D. meHta & puter programmers have a ate’s degree”. Innova Sols., degree and that a bachelor’s gree.” Id. at 13. While it ac-

KaItLYN BOx* bachelor’s degree”, thereby Inc. v. Baran, 2019 U.S. degree is typically needed, knowledged that “a factual
implying that some individ- Dist. LEXIS 134790, *17. and USCIS’s decision that a error is not necessarily fatal
n December 16, uals employed as computer The Ninth Circuit re- bachelor’s degree is not nor- to an agency decision”, the
2020, the Ninth programmers do not have versed the District Court’s mally required”. Id. at *9. court found USCIS’s mis-
OCircuit issued its bachelor’s degrees. Id. grant of summary judgment The court was similarly construction of the OOH
opinion in Innova Solu- In a prior blog, we have to USCIS, and remanded unpersuaded by USCIS’s language to be arbitrary
tions, Inc. v. Baran, which discussed the outcome of the case, holding the US- argument that OOH lan- and capricious in this in-
involved a technology com- the Innova Solutions, Inc. CIS’ denial of the visa was guage stating that “some stance because whether or
pany, Innova, that wanted v. Baran case at the District arbitrary and capricious. employers hire workers not computer programmers
to hire an Indian employee Court level. The U.S. Dis- The court first examined with an associate’s degree” normally possess a bache-
in the specialty occupation trict Court for the North- the OOH language, holding indicates that a bachelor’s lor’s degree was central to
of Computer Programmer, ern District of California that USCIS’s denial of the degree is not normally re- USCIS’s decision. Id.
and filed an H-1B peti- heard the case in 2018, and petition on this basis was quired for the position. Finally, the court found
tion on his behalf. Innova held that the position of arbitrary and capricious. Id. at 10. In fact, the court USCIS’s decision arbitrary
Solutions, Inc. v. Baran, Programming Analyst, cat- Innova Solutions, Inc. v. reasoned, this language is and capricious because it
No. 19-16849, *4. USCIS egorized under the OOH’s Baran, No. 19-16849, *8. entirely consistent with the failed to consider key evi-
denied the petition stating Computer Programmer The court compared the regulatory criteria, which dence. Id. at *14. The court
that Innova failed to show classification, did not quali- OOH statements that “[m] requires only that a bach- reasoned that OOH lan-
that the position of Com- fy as a specialty occupation ost computer programmers elor’s degree “normally”, guage stating that a bache-
puter Programmer is a because the OOH’s de- have a bachelor’s degree in and not “always”, be re- lor’s degree is the “[t]ypical
specialty occupation. Id. at scription for Computer Pro- computer science or a re- quired for entry into an level of education that most
5-6. USCIS relied heavily grammer stated only that lated subject” and a bache- occupation. Id. The court workers need” to become a
on the Department of La- “most” Computer Program- lor’s degree is the “[t]ypical stated that “[w]hile agencies computer programmer was
bor’s Occupational Outlook mers have a bachelor’s de- level of education that most are entitled to deference in prominently featured on
Handbook (OOH), which gree but “some employers workers need to enter” with interpreting their own am- the OOH landing page and
states that “[m]ost com- hire workers with an associ- the computer programmer biguous regulations, this of central importance to the
occupation to the regula- regulation is not ambiguous USCIS’s determination, but
tory language at 8 C.F.R. and deference to such an the USCIS failed event to
214.2(h)(4)(iii)(A), which implausible interpretation mention this language in its
requires that a bachelor’s is unwarranted, relying on decision. Id.
degree “normally” the min- Kisor v. Wilkie, 139 S. Ct. While the Ninth Cir-
imum education required 2400, 2414 (2019), which cuit’s decision in Innova
for the occupation. Id. The limited Auer deference to Solutions is doubtless a
court found there to be no “genuinely ambiguous” reg- victory for U.S. technology
appreciable difference be- ulations. Id. at 10-11. companies who employ for-
tween these two descrip- The court also held eign workers as computer
tions, stating that: “[t]here that USCIS’s denial was programmers, the decision
is no daylight between typi- arbitrary and capricious be- has broader implications, as
cally needed, per the OOH, cause it mischaracterized well. For one, the decision
and normally required, per the language in the OOH. is a refreshing rebuttal to
the regulatory criteria”. Id. at *12-13. The USCIS USCIS’s longstanding prac-
Id. Given the agreement decision claimed that the tice of challenging comput-
between the two require- OOH stated that “the [com- er programming on special-
ments, the court found that puter programmer] occupa- ty occupation grounds. On

m of USCIS’s denial of the visa tion allows for a wide range March 31, 2017, the USCIS
of educational credentials, issued a policy memoran-
based on the OOH crite-
CYRUS D. MEHTA & PARTNERS PLLC
ria was arbitrary and capri- including an associate’s dum that rescinded earli-
cious, lambasting USCIS’s degree to qualify”, when er 2000 guidance that ac-

reasoning as “beyond sav- in fact it states merely that knowledged the position of

 
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­ ing” and stating that “there “[m]ost computer program- computer programmer as a
is no “rational connection” mers have a bachelor’s de- specialty occupation. The
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between the only source gree in computer science or 2017 policy memorandum
USCIS cited, which indi- a related subject; however, relied on the current lan-
cated most computer pro- some employers hire work- guage in the OOH as basis
2 6th Floor

    grammers have a bachelor’s ers with an associate’s de- for rescission of the earli-

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