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Overcoming Defensor

 

Defensor v. Meisnner is a USCIS favorite these days. USCIS claims that because of this case, the end-client is the entity that sets the education requirement, not the petitioner.

If your client does not state the position’s education requirement in their letter or work order, UCSIS may find that to be a reason for denial. So how can you prevent this? First, let’s discuss the case and the decision. Here’s a quick summary.

The petitioner in Defensor was a consulting company that placed nurses to work at a hospital. The court found that the petitioner could not be a valid employer because the hospital controls nurses, not an off-site company that merely pays them. In such a case, the end-client is considered the actual employer, so the end-client’s education requirement is the focus of the specialty occupation analysis, not the petitioner’s.

It’s hard to argue against the court’s decision because the situation in Defensor likely warranted that outcome. So what’s the problem? It’s that USCIS incorrectly tries to apply Defensor to all H-1B cases involving off-site (i.e. third party) placements, regardless of the facts.

Defensor involves a very specific situation and it probably doesn’t apply to your case. A client letter or contract between the parties can evidence that neither the petitioner nor the end-client in your case are like their Defensor counterparts, so Defensor is not relevant or applicable. As such, the petitioner’s education requirements should be the focus of the specialty occupation analysis, not the end-client’s.

The trick is finding the right language in the available evidence and using it to credibly argue that Defensor is inapplicable to the case. Defensor is not an unbeatable roadblock, it’s an opportunity to get creative.

 
Eren Yildirim