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er guidance. Importantly, Cir. 2000). In Defensor, petitioners have success- decisions have done, that (1997). In its decision in
the Ninth Circuit in Inno- the court held that the held fully challenged USCIS’s the OOH may not be used Innova Solutions, the court
va Solutions held that this that the criteria in 8 CFR denial of H-1B petitions as a Holy Grail to deny acknowledges that Auer
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same language from the § 214.2(h)(4)(iii)(A) are on the grounds that the H-1B petitions that are deference applies only to
OOH does not contradict merely necessary condi- position in question did based on well-reasoned ar- genuinely ambiguous reg-
the regulatory criteria at 8 tions, rather than necessary not qualify as a specialty guments by the petitioner ulations, which 8 C.F.R.
C.F.R. 214.2(h)(4)(iii)(A), and sufficient conditions, occupation. See, e.g., Tay- and corroborated by sub- 214.2(h)(4)(iii)(A) is not.
effectively undercutting the to establish that a position lor Made Software, Inc. v. stantial evidence, including The court’s decision re-
USCIS’ rationale for issu- is a specialty occupation, a Cissna, Civil Action No. expert opinions. minds the USCIS that
ing the 2017 memorandum. decision the USCIS often 2019-0202 (D.D.C. 2020); From SmartTV Download ZingoTV App
Finally, one cannot Auer deference is not a
Additionally, Innova cites in H-1B RFEs. Id. Relx, Inc. v. Baran, 397 F. overstate the growing im- broad license to deny mer-
Solutions represents the Similarly, in Royal Siam Supp. 3d 41 (D.D.C. 2019); portance of Kisor v. Wilk- itorious H-1B petitions.
first recent reported circuit Corp. v. Chertoff, the First Next Generation Technol- ie in limiting the USCIS’s
court decision in which the Circuit ruled in favor of ogy v. Johnson, 15 cv 5663 ability to exercise broad *Kaitlyn Box graduated
court has ruled in favor of USCIS’s position that a (S.D.N.Y. 2017). In Innova discretion in interpreting with a JD from Penn State
Law in 2020, and works as a
the H-1B petitioner. Other position which requires a Solutions, the Ninth Cir- Login|Register with your eMail then
its own regulations un-
landmark circuit court cas- degree in a specific special- cuit reminds the USCIS, as der Auer precedent. Auer Law Clerk at Cyrus D. Mehta
es have historically favored ty related to the duties and the numerous lower court v. Robbins, 519 U.S. 452 & Partners PLLC.
the USCIS. In Defensor v. responsibilities of the job _________________________________________________________________________________________________
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Meissner, for example, the should be accorded more Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner
Fifth Circuit ruled against weight than a generic de- of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administra-
a medical staffing agency gree requirement. Royal tive Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special
that had filed H-1B pe- Siam Corp v. Chertoff, 484 counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First
titions on behalf of the F.3d 139 (First Cir. 2007). Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
nurses it employed on the Innova Solutions is thus a for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair
grounds that the end hos- unique and welcome victo- of the Board of Trustees of the American Immigration Council and former chair of the Committee on
pital where the nurses were ry for H-1B petitioners in Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and
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placed was really the super- the circuit courts. writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law
vising entity, and reasoning The Ninth Circuit’s at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and
that no evidence suggested decision is in line with a the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono repre-
these hospitals required number of recent deci- sentation in the immigration field. He has also received two AILA Presidential Commendations in 2010
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the nurses to possess bach- sions in lower courts in and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
elor’s degrees. Defensor which, in contrast to most Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
v. Meissner, 201 F.3d (5th circuit court cases, H-1B Global 2019 in immigration law, among other rankings.

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