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H-1B Market Research Analyst Class Members Can Reopen Case Pursuant to Settlement Agreement

By Thomas Lee

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On October 19, 2021, the U.S. District Court, Northern District of California, San Jose Division, granted final approval of the settlement agreement in the case MadKudu Inc., et al v. U.S. Citizenship and Immigration Services, et al., No. 20-CV-2653 (N.D. Cal.). This agreement introduces new guidance for adjudicating pending or future H-1b petitions for market research analysts.



In addition, the agreement allows class members to request certain denied I-129 Forms, Petition for a Nonimmigrant Worker, based on H-1B classification for a market research analyst, to submit Form I-290B, Notice of Appeal or Motion, to reopen and adjudicate their case based on the terms of the settlement agreement. There is no fees for this request and class members have until April 26, 2022 to submit a Form I-290B.



Class members eligible to submit a Form I-290B:



- Filed a Form I-129 H-1B petition between 01/01/2019 and 10/19/2021 for a market research analyst


- Petition was denied by USCIS based on a finding that the Occupational Outlook Handbook (OOH) entry for a market research analyst did not establish that the occupation is a specialty occupation, therefore, did not satisfy 8 CFR 214.2(h)(4)(iii)(A)(1)


- The petition would have been approved if not for this finding


- At the time the Form I-290B is filed, in the originally submitted certified Labor Condition Application (LCA) along with the Form I-129, there is any amount of time remaining on the period specified



On or before April 26, 2022, class members whose eligible Form I-129 was denied may submit their Form I-290B without any fees to reopen their case, and if eligibility is established, may have their I-129 H-1B petition adjudicated per the terms of the settlement agreement.



For all eligible, timely-filed reopening requests, USCIS will make a decision within 90 days of receipt of the physical file at the adjudicating office. USCIS will make an effort to prioritize reopening requests for petitions with LCAs expiring less than 90 days after the Form I-290B is properly filed.



The USCIS will reject the Form I-290B if determined that the underlying petition is not eligible for the reopening process in accordance to the eligible requirements stated above.



Filing Instructions:



All Forms I-290B must be submitted to the Nebraska Service Center, on or before April 26, 2022, at the addresses below.



USPS:
USCIS Nebraska Service Center
Attn: Madkudu Project
P.O. Box 87129
Lincoln, NE 68701



FEDEX, UPS, and DHL Deliveries
USCIS Nebraska Service Center
Attn: Madkudu Project
850 'S' Street
Lincoln, NE 68508



Submitting Form I-290B:


1. Include a cover page to indicate that the Form I-290B is being filed by a claimed class member.


2. Indicate the name of the office that made the latest unfavorable decision on the cover page and Form I-290B (name of the Service Center or Administrative Appeals Office (AAO)).


3. Submit a copy of USCIS' denial of the underlying H-1B petition to demonstrate class membership (if you appealed to, and had your appeal dismissed by the AAO, you should submit a copy of the AAO decision instead of, or in addition to, the service center denial). The initial H-1B petition's refusal should demonstrate that:


- The petition was filed between January 1, 2019 and October 19, 2021 (in cases where the denial does not indicate the petition's filing date, you should send a copy of the petition's receipt notification from USCIS).
- USCIS determined that the job fell under the market research analyst occupation
- USCIS considered the OOH entry for market research analysts
- USCIS determined that the market research analyst occupation was not a specialty occupation under the first regulatory criterion at 8 CFR 214.2(h)(4)(iii)(A)(1) and
-The sole basis for the denial was that the position did not fall under a specialty occupation.


4. Demonstrate that there is any time left on the period mentioned in the certified LCA at the time the I-290B is submitted (for example, by presenting a copy of the LCA filed with the refused petition).
5. You must request reopening in the reopening request.
6. Give the underlying Form I-129 petition a receipt number.
7. Verify that the job offer provided in the underlying Form I-129 petition is still valid.
8. Specify if you desire a new start and/or end date for the validity period (as long as the new date(s) falls within the timeframe in the certified LCA originally filed with the petition).




Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.