A judge on May 9 ordered US Citizenship and Immigration Services to explain its H-1B visa processing times and rule changes after hearing first-time oral arguments in a lawsuit brought by ITServe Alliance, a trade association for IT services companies.
The lawsuit, first launched last year, consolidates between 30 and 40 cases filed by different IT companies that combine to count more than 90 H-1B applications that have been either denied or approved for only short periods of time. ITServe, which has more than 1,000 member companies in the US, filed the litigation in an attempt to force a court ruling against USCIS’ policy that imposed additional requirements for IT consulting firms seeking to employ workers on H-1B visas, which allow highly skilled professionals to work in the US on a temporary basis.
Judge Rosemary Collyer of the United States District Court for the District of Columbia also required the government agency to discuss whether depositions of certain USCIS officials and document discovery from the agency were necessary to resolve the issues. The agency’s answers are due two weeks from last week’s hearing.
The USCIS is not following the regulations that are outlined in legislation, ITServe representatives told Staffing Industry Analysts. Instead, the agency has been making its own internal rules through memos.
A USCIS policy memo issued in February 2018 imposed additional requirements for IT consulting firms or agents seeking to place H-1B workers with third-party clients. For such workers, the petitioner now must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary, for the entire time requested on the petition, Fiona Coombe, SIA’s director of legal and regulatory research, explains in a legal update.
USCIS may require additional corroborating evidence to substantiate a petitioner’s claim such as contracts, copies of detailed statements of work, work orders or a letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. USCIS has used the policy to request a detailed description of the specialized duties, the qualifications required, the duration of the job, salary or wages paid, hours worked, benefits, and a detailed description of who will supervise the beneficiary and the beneficiary’s duties, together with any other related evidence for such applications.
“USCIS’s policies under the current administration are clearly undermining the H-1B program as it is intended in the legislation and creating unexpected levels of uncertainties for both US employees and employers, especially in the IT sector,” said ITServe President Vinod Babu Uppu.
Uppo also noted the arbitrary rule changes have been impacting the business environment. “IT industry needs H-1B workers to meet the demand in the US and when these H-1Bs are denied unlawfully, it hurts American businesses because they are unable to meet the client demand,” he said. “If these guest workers are not able to get H-1B permits, then American businesses are forced to take their work where the workers are, which would mean taking their business outside of the US.”
The judge’s ruling could carry major implications for how USCIS directs adjudicators to decide H-1B cases, wrote Stuart Anderson, executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues, in a Forbes article.
Judge Collyer pointed to the significant “difference in outcome” for employers filing H-1B petitions during the Trump administration compared to previous years, according to Anderson. Plaintiff’s attorneys Jonathan Wasden and Bradley Banias pointed to data showing USCIS approved 94% of H-1B petitions for client ERP Analysts from fiscal year 2012 to fiscal year2017, but the agency approved only 19% of the company’s cases during fiscal year 2018 to fiscal year 2019. The company’s business model did not change, argued Wasden and Banias in their brief, “the Agency’s rules did.”