USA

Denials And Delays Of H1B Visa Processing – Lawsuit Against USCIS

Mass litigation campaign filed by ITServe against the USCIS challenging the new visa regulations
US District Court not persuaded by USCIS arguments on the need for ‘guaranteed work assignments’
USCIS to submit an explanation for issues with H1B visa processing within 2 weeks

Recent changes in the H1B visa policy have led to a number of applications being denied and delayed. IT companies have been hit the hardest by this.

A lawsuit filed by ITServe Alliance, a coalition of IT companies in the USA has resulted in a US District Court judge ordering the US Citizenship and Immigration Services (USCIS) to explain the delays and denials of H1B processing.

H1B Visa

ITServe Vs United States – Background To The Lawsuit

In February 2018, the USCIS issued a memorandum for IT companies to meet a number of new requirements when placing employees with H1B visas at third-party client sites.

When applying for new H1B visas or renewals of existing visas, these companies would also have to prove ‘guaranteed specific and non-speculative work assignments’ for the length of time the visa would be issued for.

This typically is about 3 years. For this, the companies would have to submit evidence in the form of the employee’s itinerary and detailed customer contracts.

In addition, the employer would also have to prove that the employer-employee relationship will be maintained even when the employee is at a client site.

As a result of these new regulations, the processing of applications was delayed considerably. A number of H1b were issued for a much shorter duration than the regular 3 year period. This ranged from a few weeks to a few months.

There was also a drastic increase in the number of H1B visa denials. According to one report, the H1B visa denial rate for IT service companies in the fiscal year ending 2018 ranged from 20% to 80% while it was only around 1% for non-service companies.

Companies that are part of the ITServe Alliance individually filed lawsuits challenging the legality of the new rules and denial of H1B visas. However, these typically resulted only in the USCIS reopening and reapproving petitions to avoid a judicial review of the new policies introduced.

While this did provide relief for the individual plaintiffs, it did not prevent the USCIS from continuing to do as it liked.

Why The Lawsuit?

When the individual lawsuits did not succeed in bringing about change in the USCIS policy, ITServe and its member companies conducted a mass litigation campaign along with attorney Jonathan Wasden.

Since the cases had overlapping legal issues, the US District Court for the District of Columbia ordered them to be consolidated under the name “ITSERVICE ALLIANCE v. CISSNA, D.D.C.18-cv-2350”.

This was designed at forcing the USCIS to defend their new policies in open court. Through this campaign, ITServe challenged the legality of:

The USCIS policy to increase the amount of evidence companies employing H1B visa holders at client locations had to provide in relation to the evidence needed by companies employing H1B visa holders at their own sites.
The need for medical/nurse staffing companies and IT consulting firms to prove “guaranteed specific and non-speculative work assignments” for the complete 3-year duration of the H1B visa.
The power of the USCIS to randomly decide how long the H1b visa would be valid for. In some cases, visas have been approved for only 1 day at a time. This has made employers pay additional fees to submit H1B vise extension petitions and kept the companies from utilizing the full potential of the employee.

The matter was heard by Judge Rosemary M Collyer who expressed skepticism over the USCIS’s argument that the new rules merely re-interpreted the existing visa policy.

The district court judge was also not persuaded by the USCIS’s argument over the legality of the ‘Employer-Employee Relationship’ test and the need for IT service companies to give ‘guaranteed work assignments’.

The judge observed that the employer letter submitted along with the H1B visa petition and the labor condition application form should prove that a job is guaranteed and hence fulfills the basic statutory requirement. In addition, the court noted that the USCIS demand for a guaranteed work assignment for the entire three year period is unreasonable.

The court has demanded an explanation from the USCIS on the need to prove ‘guaranteed specific and non-speculative work assignment’ for the complete three-year H1B visa duration.

An explanation has also been sought for the denials and delays of H1B visa petitions. The USCIS has been given two weeks to submit these explanations.