Beginning in 2017, the United States Citizenship and Immigration Service (USCIS) began changing the rules applicable to H-1B visa petition adjudication. These rule changes led to unprecedented denial rates for companies in the Information Technology Services sector.
Member companies of the ITServe Alliance (ITServe), a coalition of IT Services companies in the United States, had sporadically filed individual lawsuits challenging denied H-1B visa petitions and the legality of the new rules created by USCIS.
However, USCIS typically would reopen and reapprove petitions to avoid judicial review of their policies. This provided relief for individual plaintiff companies but did not prevent USCIS from continuing to violate the law.
Consequently, ITServe and its member companies in coordination with attorney Jonathan Wasden conducted a mass litigation campaign, designed to force USCIS into defending their policies in open court.
More than 30 individual lawsuits challenging a combined 97 H-1B decisions on H-1B visas were filed in a two-week period. These cases challenged the legality of three new rules:
1) Creating a significantly higher evidentiary burden for companies whose employees perform services at a client location (i.e. IT consulting companies and nurse/medical staffing companies), and a lower evidentiary burden for all other H-1B employers
2) Requiring IT consulting companies and nurse/medical staffing companies to prove guaranteed “specific and non-speculative work assignments” for the entire three-year duration of the H-1B visa
3) Allowing USCIS to pick, essentially at random, how long it will approve an H-1B work visa (often times approving a visa for as little as one day). This practice prohibited employers from actually utilizing the employee, and dramatically increased the fees employers were required to pay USCIS for H-1B extension petitions (seeking to extend the visa beyond the 1-day approval)
Because the cases presented overlapping legal issues, the US District Court for the District of Columbia ordered the cases be consolidated to resolve the issues in common. The cases are now consolidated under the name “ITSERVICE ALLIANCE v. CISSNA, D.D.C.18-cv-2350”.
The Court has been asked to decide if the above rules violate the Administrative Procedure Act (APA) and Immigration and Nationality Act (INA). ITServe and its member company plaintiffs contend that the agency lacks authority under the APA and INA to make these rules without complying with the correct legal process of notice and comment rulemaking.
The case is on an expedited briefing schedule, with a hearing set to determine the motion for summary judgment filed by plaintiffs on the three issues. The expedited briefing schedule cut months off of the typical litigation process, allowing the employers to get answers to these questions much faster than normal.
The hearing is on May 9, 2019, before Judge Collyer in Washington DC, and is open to the public.
It is worth noting that while USCIS contends in court that it has not created and enforced new rules, data the agency released to the public in the midst of the briefing schedule indicated the exact opposite.
The data showed historical approval rates for companies like ITServe members as well as all other employers. Beginning in Fiscal Year 2018, the approval rate plummeted for companies whose employees at times perform services at client locations.
This was true of H-1B extension petitions for employees who were in the country legally on a previously approved H-1B, and where the employer was seeking to continue their employment in the same job for the same employer.
Some of these employees had been in the country for more than 10 years, on multiple H-1B extensions, without any problem. Because of hidden rule changes these employees were no longer deemed eligible for H-1B visas.
About ITServe Alliance
ITServe is the largest association of Information Technology Solutions & Services organizations in the US, representing over 1,100 member companies. Through the years, ITServe has evolved as a leading platform to collaborate and to further the interests of member companies. Some of the recent notable achievements include successfully challenging USCIS website update to prevent STEM OPT students from working at 3rd party work locations.
For further information, contact Deepali Khadakban at PRMedia@itserve.org
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Press release by: Indian Clicks, LLC