Bronxville Montessori School and a teacher have sued U.S. Citizenship and Immigration Services for refusing to extend the teacher’s H-1B visa.
Mopelola Anthonia Obasa had been granted the visa to teach at the school for three years. Now, immigration authorities say, she no longer qualifies.
“Ms. Obasa has no lawful status to live or work in the United States” without the visa, the complaint, filed May 8 in federal court in White Plains, states. “She and her son are faced with the prospect of having to uproot the lives they have built here and face an uncertain future in Nigeria.”
Bronxville Montessori operates a preschool at West Center Congregational Church on Pondfield Road in the Cedar Knolls neighborhood of Yonkers.
The school is organized around Montessori’s discovery model in which children learn by working with materials, rather than by direct instruction, and teachers are trained to observe children closely so as to recognize their individual characteristics, tendencies and talents.
Bronxville Montessori petitioned the government in 2015 for an H-1B visa to allow Obasa to work there for three years.
Last year, the school petitioned for a three-year extension and the government denied the request.
The H-1B program is designed to enable employers to temporarily fill jobs in specialty occupations with high-skilled foreign workers, typically in engineering, computer programming, health care and education.
An applicant must satisfy at least one of four criteria. The position requires a bachelor’s degree or higher. The work is so complex or unique that it can only be performed by someone with a degree. The employer normally requires a degree for the job. And the specific duties are so specialized that a degree is necessary.
Obasa was hired as a head teacher, a position for which Bronxville Montessori requires a bachelor’s degree. New York State also requires at least a bachelor’s degree for preschool teachers, according to the complaint.
Obasa was awarded a master’s degree in education from Long Island University in 2014, and she is certified by New York in early child education.
But the immigration agency concluded that a bachelor’s degree is not a minimum requirement for preschool teachers, citing language in the U.S. Department of Labor’s Occupational Outlook Handbook that states that training requirements for the position vary.
The agency misread the manual, the school claims, and ignored New York’s requirements.
The government also said that many advertised positions do not specify a degree. But a survey of 19 job advertisements, according to the complaint, showed that 14 positions did specify a degree and the remaining five merely omitted mention of a degree.
The government also allegedly dismissed Bronxville Montessori’s requirement for a degree, rendering “this criterion meaningless.”
The school accuses the immigration agency of making a decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act.
“In accordance with USCIS policy,” agency spokeswoman Katie Tichacek responded, “we cannot comment on ongoing litigation.”
The school is asking the court to declare that the government abused its discretion and to compel it to approve the visa extension, allowing Obasa to continue working until September 2021.
Obasa and the school are represented by attorneys Richard B. Solomon of Pleasantville and Daniel A. Seff of Burlington, Vermont.