Federal Judge slams restrictions imposed by USCIS to deny H1-B visas

The IT industry has some reason for optimism in a case filed by the ITServe Alliance against the US Citizenship and Immigration Services (USCIS) that challenges new restrictions on H1-B visa applications. 

At an initial hearing May 9, US District judge Rosemary Collyer in Washington, DC, questioned the policies aimed at denying

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visas to skilled foreign workers. 

‘You don't want these people in this country,’ the judge told the government attorney after growing frustrated with his inability to detail the USCIS' reasoning for changing up the H-1B program rules, according to Law360. The denials for skilled worker visas have risen to a 10-year high. 

The judge also floated the possibility of ordering discovery. 

Beginning in 2017, the USCIS began changing the rules which led to unprecedented denial rates for H1-B visa applications. This was challenged in lawsuits by several companies. USCIS typically would reopen and reapprove petitions to avoid judicial review of their policies. Though it provided relief for individual plaintiff companies, it did not prevent USCIS from continuing to violate the law. 

Consequently, the ITServe Alliance (ITServe), a coalition of IT service and related companies, working with attorney Jonathan Wasden conducted a mass litigation campaign to force USCIS to defend their policies in open court. 

The lawsuit challenged the legality of three new rules: Firstly, creating a significantly higher evidentiary burden for companies whose employees perform services at a client location (ie, IT consulting companies and nurse/medical staffing companies), and a lower burden of providing evidence for all other H-1B employers. Secondly, requiring the companies to prove guaranteed ‘specific and non-speculative work assignments’ for the entire three-year duration of the H-1B visa. Thirdly, allowing USCIS to pick, essentially at random, how long it will approve an H-1B work visa, some times approving a visa for as little as one day. 

The cases are now consolidated under the name ITSERVICE ALLIANCE v. CISSNA, D.D.C.18-cv-2350 

The IT industry noted that it was impossible to provide a detailed itinerary for the guest workers for the entire three-year period. The ITServe accused the government of trying to end the information technology consulting business model. 

According to Courthouse News, Wasden questioned the USCIS memo of February 2018 that required firms to specify all third-party work assignments, giving the agency authority to reduce a visa’s duration and allowing it to redefine which firms constitute employers under the program. He told the judge that such authority rests with the Department of Labor. 

In 2018, the number of denials for IT consulting companies spiked as high as 40 percent, compared to the 1 percent denial rate for tech giants like Google, Amazon and Microsoft. 

The new rules also allowed the USCIS to take up to one year to adjudicate an application, even though Congress specifically determined it should take only a month, according to case filings. 

US Department of Justice Attorney Aaron S Goldsmith defended the changes, arguing that the detailed itinerary information will prevent fraud. 

‘Armed with more specific information, the agency is better equipped to root out bad actors who want to use the program to bring people in the country that don't actually intend to do the work they said they would, Goldsmith told the judge, according to Law360. ‘It’s just being used as a ruse to bring people into the country.’ 

Goldsmith claimed that the policy memo simply directs visa adjudicators to properly apply existing law and it does not constitute a new regulation or final agency action. The court can’t review it, he argued. 

Judge Collyer saw merit in that argument but asked how she could determine that, since no administrative record about the policy exists, according to CN. She suggested going for discovery at this point. 

The judge noted the possibility that the USCIS policy is tied to the administration’s hard-line immigration stance, and its efforts to keep certain groups out of the country. 

The judge questioned Goldsmith’s suggestion of individual litigation by aggrieved parties. 

‘You had better come up with something better than that,’ the judge said, according to CN. 

Goldsmith said he has no answer for the question of the delay in adjudicating the H1-B applications. Once it took only 30 days and now it could take up to a year. 

The CN report said that ‘the judge was careful to note that the plaintiffs in the consolidated cases might lose. But she stressed the importance of understanding the facts behind the 2018 policy, including who wrote it, why was it issued, and whether it came directly from the agency.’ 

Wasden said the USCIS policy is to stifle of IT consulting firms, and has injected massive uncertainty into the system. 

‘We can’t give them the exact itineraries all the time because we are growing businesses,’ according to ITServe media director Deepali Khadakban.

At a teleconference held on May 10, Attorney Wasden said if the judge orders discovery, it may be beneficial to the plaintiffs. He said discovery is very unusual in these kind of cases. The government may not go for such a cumbersome procedure and may opt for settlement. The government has two weeks state their position. 

He also noted that the litigation is going well so far. 

ITServe is the largest association of information tech service organizations in the US, representing over 1,100 member companies. Some of its recent achievements include successfully challenging a USCIS website update to prevent STEM OPT students from working at third party work locations.

Representatives of IT Serve in Washington, DC to attend the court hearing in the case against USCIS on May 9. They included Vinod Uppu, IT Serve president, Deepali Khadakban, media director, Dev Karlekar, Vinay Mahajan, Krishna Garimeella and others.