USCIS Challenged: Court Considers Restrictive H-1B Policies
A lawsuit filed by ITServe Alliance came to court for pre-trial proceedings on May 9th, bringing forth arguments against the United States Citizenship and Immigration Service (USCIS) and the Service’s policies that continue to produce H-1B visa denials. While there continues to be several restrictive USCIS policies, this lawsuit brings forth the issue of H-1B application denials with short validity periods and worksite requirements. In other words, USCIS currently may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion and deny applications based on third-party placement. District Judge Rosemary M. Collyer presently presides over the case and, at the conclusion of the lawsuit, will have a significant impact on future USCIS adjudications and policies.
Lawsuit Arguments
According to Forbes correspondents, the lawsuit boils down to three major issues:
- USCIS has not provided reasoning for disparate outcomes and adjudication processes for different types of employers (i.e. employment at primary worksite versus third party worksites);
- USCIS does not explain why specific work assignments must stretch out for three years for contractors without allowing for paid, nonproductive time; and
- There is no clear directive for changes to USCIS adjudication of H-1B petitions.
The plaintiff brings forth arguments against third party worksite policies, short validity periods, and anti-benching regulations. The plaintiffs argue that USCIS is beyond authority in denying applications when an employer intends to place H-1B workers at a third-party customer worksite. Representatives for the IT companies further argue that contractors should be considered viable employers under regulation 8 C.F.R Sec. 214.2(h)(4)(ii). In this case, the plaintiffs argue that contractors are as sufficient as day to day employers. To date, contracting H-1B employers have received denials based on third party, customer worksite location placements.
The plaintiffs have additionally brought issue with adjudication policies allowing short periods of visa validity, citing an H-1B approval that lasted only one day. The issue, like with other policy complaints, comes from the lack of transparency related to adjudication regulations. District Rosemary M. Collyer, over the next four weeks, will decide whether to order discovery (i.e. investigation of further information by each party) is necessary for the case.