The Situation

Afew months after I received my law license, another lawyer hired me as of counsel to challenge an H-1B petition denial.

The client was a veterinary clinic founded and run by an acclaimed veterinarian. Her patients and the administrative duties of running the clinic consumed all her time, leaving none for research and writing. So the clinic, a professional corporation, filed an H-1B petition in May 2006 for a research associate to work there under the founder’s direct supervision, focusing solely on medical research and writing.

The USCIS denial in November 2006 did not question the job qualifying as a “specialty occupation,” nor the beneficiary’s credentials or anything else. The denial conceded that the founder was “a well respected veterinarian in her field, having published eight books on various aspects of pet care.” The trouble was the research associate’s duties. Every one of them served the founder’s research, none was “involved in the day-to-day operation of the veterinary clinic,” and the examiner reasoned that work for the founder was not work for the clinic:

“All of the duties identified in the petition relate to research which the beneficiary would perform directly for Dr. [the founder] and her own personal endeavors (that is, outside of the veterinary clinic). From the evidence provided, the beneficiary would not be working for [the petitioner]. Rather, the beneficiary would be performing private research solely for Dr. [the founder].”

USCIS alleged the founder, not the clinic, was the real employer and concluded the petitioner was not the employer.

Whoever wrote that decision showed real imagination and ambition, unconstrained by the job title of a USCIS examiner or the limits of the agency’s jurisdiction. He or she wanted to tackle the big questions. The examiner looked far beyond the duties themselves to decide who benefitted from their performance. After all, someone needed to speak for those animal patients; they were being neglected by the petitioner and couldn’t speak for themselves. Surely they, too, had standing in this matter. One would expect such jurisprudence to emanate from the Supreme Court of the United States in Washington, D.C., not from the Texas Service Center in Mesquite, Texas.

Who is the Employer?

The examiner cited no authority for the benefit test, because none existed. The regulation as it then read, at 8 C.F.R. § 214.2(h)(4)(ii), contained a three-part definition of a United States employer: an entity that engages a person to work in the United States, that may hire, pay, fire, supervise, or otherwise control that person’s work, and that has an IRS tax identification number. The petitioner met all three prongs. Under Matter of Smith, 12 I&N Dec. 772 (D.D. 1967), the firm which pays the beneficiary directly and guarantees full-time employment is the actual employer. The law had been settled for decades.

The Motion

My motion to reconsider in December 2006 followed USCIS’s reasoning to where it led. Research associates at universities do not teach the students; research associates at hospitals do not treat the patients; research is peripheral to the day-to-day operations of nearly every institution that employs a researcher. And superiors profit personally from their subordinates’ work in every field: lawyers from paralegals, judges from law clerks, presidents from advisors, generals from officers. Applied in USCIS’s fashion, the rule dissolves the employer-employee relationship wherever a supervisor benefits from a subordinate’s work, which is to say everywhere. If USCIS was right, every research associate in the country was working for the wrong employer.

I cited the USCIS’s own authorities: its Operations Instructions, its interoffice memorandum of September 12, 2006 listing Matter of Smith as the precedent on the definition of employer, and three decisions of the Administrative Appeals Office (AAO) sustaining appeals on the same reasoning. Then I challenged USCIS to identify at least one legal authority that would preclude the petitioner from employing the beneficiary in her capacity as a research associate, since USCIS had never questioned that the position was a specialty occupation, nor that the petitioner would be paying for the work.

Fourteen Months, Two Sentences

Apparently, the Texas Service Center declined to approve the motion and forwarded it to the AAO to be treated as an appeal. The AAO then remanded the case to the Texas Service Center, which, in turn, transferred the case to the Vermont Service Center. That is where the dismissal originated, fourteen months later, in February 2008:

“Your motion does not provide new facts nor does it give reasons for reconsideration. Therefore, your motion is hereby dismissed per 8 CFR 103.5(a)(4).”

“Is this some kind of joke?” asked my colleague, the attorney of record. It was not. Perhaps the Vermont Service Center never received the complete file with the actual motion from the Texas Service Center or the AAO, which would explain the dismissal posture. Whatever the reason, a motion to reconsider built on a solid precedent decision, three non-precedent AAO decisions, and the agency’s own operating instructions and memorandum was disposed of unread and unconsidered. So much for due process.

The Complaint Worth Filing

Truth be told, a motion to reconsider only asks the agency to read it; nothing compels the reading. A federal court complaint compels. It lands on the desk of a government trial lawyer who must answer it in writing, and appear before a federal judge, on a deadline no USCIS service center controls. So that’s what I advised filing next, instead of letting the case moot itself while we waited for an answer to another motion or an appeal to the AAO. The client reluctantly agreed, as long as our legal fees were reduced to next to nothing. My colleague fronted the filing fees; I drafted the complaint: an Administrative Procedure Act action with a Fifth Amendment due process count, naming as defendants everyone from Secretary of Homeland Security Michael Chertoff down to the Vermont Service Center director who had signed the two-sentence dismissal of the motion. The complaint alleged what the motion had already argued: this denial was arbitrary, capricious, at variance with Matter of Smith and the agency’s own Operations Instructions, and unsupported by the record. My colleague filed it in September 2008.

The Result

The government’s attorney called my colleague after the complaint landed and astonished him by admitting the case was “not worth fighting” and offering to settle.

So we did.

It took two months for the federal court case to run its course before being voluntarily dismissed and for USCIS to approve the petition in November 2008, thirty months after it was initially filed. The researcher, who by then had not worked in two years, finally went to work for the clinic.

Postscript

The H-1B modernization rule, 89 Fed. Reg. 103054 (Dec. 18, 2024), effective January 17, 2025, rewrote the definition of a United States employer at 8 C.F.R. § 214.2(h)(4)(ii). The employer-employee relationship clause was deleted. What remains is a bona fide job offer for the beneficiary to work in the United States, a legal presence here, amenability to service of process, and the tax identification number. The clinic would have satisfied the new definition in spades.