A recent lawsuit filed in the U.S. District Court for the District of Columbia, ITServe Alliance v. USCIS, aims to limit the discretionary powers of the United States Customs and Immigration Service (USCIS) in limiting the approved duration of H-1B visas. ITServe Alliance, the largest association of information technology “IT” Services, Staffing, Consulting organizations, filed the lawsuit in hopes to change the ways in which USCIS processes and adjudicates H-1B visas.
The lawsuit comes in response to continued employer dissatisfaction over the processing and approval of H-1B visa petitions. The plaintiff, ITServe Alliance, represents one of the largest populations of employers for the highly skilled immigrant work program, the IT sector. Like many other companies, members of the ITServe Alliance must compile an extraordinary quantity of documentation in order to file an H-1B petition. Besides the lengthy application process, employers like those ITServe Alliance are unduly burdened by the costs associated with H-1B petition filings. Regardless of this burden, USCIS may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion. In response, ITServe Alliance has filed a lawsuit claiming that USCIS lacks the written authority to reduce the duration of an H-1B visa below the three-year minimum.
ITServe Alliance has asked a district judge to rule whether USCIS is within its administrative powers, outlined by the Administrative Procedure Act, to “exercise discretion and approve H-1B visas for any duration it deems supported by the employer’s evidence.” ITServe Alliance claims that USCIS carries no legal power to limit H-1B visa to durations less than three years. In exercising this administrative power, USCIS has, at times, approved visas for a period only of a few days. Consequently, firms have received approval notices afterthe H-1B visa has expired. Besides these abnormal cases, USCIS’s discretionary power to limit the duration of H-1B visas has left many employers hesitant to file new petitions. Although it is uncertain whether USCIS will change its administrative behavior in the near future, we will continue to keep readers updated on any changes.