District Court Upholds One-Year H-1B Validity Period

Under an approved H-1B nonimmigrant visa, workers are usually permitted to work in the United States for an initial period of 3 years, not to exceed 6 years, in their qualifying “specialty occupation.” After review of all documentation submitted by the filing employer on the Form I-129 application, the USCIS has discretion to evaluate the evidence presented and determine a suitable length of time of validity for an approved H-1B visa.

In Valorem Consulting Group v. USCIS, the United States District Court for the Western District of Missouri considered whether it was arbitrary and capricious for USCIS to grant an H-1B visa for only a one year validity period when the Beneficiary was expected to work on multiple projects for different clients. In its initial H-1B filing, the Plaintiff, Valorem Consulting Group, filed an application for the Beneficiary, Amit Olkar’s, H-1B visa and supporting documentation in May 2013. The Form I-129 indicated Olkar’s employment would end on May 19, 2016. In its description of Olkar’s position, the Plaintiff stated the employee would be working for a consulting business that “offers a broad range of professional services” to its clients, generally describing Olkar’s position as performing consulting services that vary depending on the client’s need. The USCIS took issue with the fact that although Olkar would be technically employed by Valorem Consulting Group, his specific consulting duties would vary according to client’s needs, which may not qualify under “specialty occupation.” Therefore, USCIS denied the H-1B application, citing failure to provide the precise nature of the employees work on a regular and continuous basis, as well as the Neufeld Memorandum (which mandates that the applicant describes procedures when the employer/applicant places its employees at the sites of third parties).

Plaintiff initiated an appeal in December 2013, however, on February 5, 2014 – while the case was pending – USCIS reversed its decision and granted Olkar an H-1B visa, but for only one year. On July 18, 2014 the Court dismissed all of Plaintiff’s claims except the challenge to USCIS’s decision to issue a visa valid for one year instead of three years.

Under the Administrative Procedures Act, the Court can set aside USCIS’s final decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The District Court sided with USCIS agreeing that the statutes and regulations establish that the nature of Olkar’s duties are too vague to justify them as a “specialty occupation,” for 3 years, and that the USCIS was justified in not granting an H-1B visa extension to May 2016. Plaintiff also argued USCIS improperly relied on the Neufeld Memorandum, but the District Court disagreed, ruling that the Memorandum was properly used in justification. Ultimately, the court decided that the decision to award an H-1B visa with a one year validity period was not arbitrary and capricious.

We at Sharma Law Offices, LLC are available to discuss options available to those facing similar situation. Please contact us if you should have any questions in which we may be able to assist you with.