The USCIS reversal is in line with what many businesses are seeing when they take the agency to court over visa decisions, particularly under the H-1B program. Court rulings so far have been rare, but the USCIS in most cases has avoided litigation by sending an approval after a lawsuit is filed.
That also means that courts aren’t getting the opportunity to weigh in on whether the rationale behind the visa decisions is in line with the Immigration and Nationality Act and USCIS regulations.
The complaint in Kuchikulla’s case argued that a policy requiring extra evidence from information technology consulting companies—which was used to justify his H-1B denial—illegally puts added burdens on those companies that isn’t justified by the law.
Two other lawsuits directly challenging the policy, also filed by Wasden, are pending in federal district court.
The case is ERP Analysts Inc. v. Cissna, D.D.C., No. 1:19-cv-00193, visa approved 2/4/19.
Lubna Kably (Times Of India) explores the ignoble treatment of Indian professionals in and by the US following Pres. Trumps visit to India
Via Lubna Kably, TOI Opinions
“Su Chhe (What’s up) President Donald Trump? Given your rhetoric that India is hitting USA very hard, it looks like you are not in a good mood. Perhaps, our crowds will cheer you up.
Quoted by the Times of India on DC District Court’s Decision to overturn USCIS’s H-1B Specialty Occupation denial in RELX, Inc. v. Baran
I was quoted in a Times of India article on U.S. District Court for the District of Columbia’s decision to overturn USCIS’s denial (on Specialty Occupation grounds) in RELX, Inc. d/b/a/ LexisNexis USA, and Subhasree Chatterjee v. Baran et al. A recent blog entry I wrote on about case may be found here.
Relx, Inc. and Chatterjee v. Baran, 8/5/19 – DC District Court Judge Granted Summary Judgment to the Plaintiffs and Denied Government’s Motion to Dismiss in H-1B Denial
Recently, Judges at the U.S. District Court for the District of Columbia issued starkly contrasting decisions in two separate H-1B lawsuits. Both Sagarwala v. Cissna and RELX, Inc. d/b/a/ LexisNexis USA, and Subhasree Chatterjee v. Baran et al and arose from H-1B petitions that had been denied by the USCIS on “Specialty Occupation” grounds. Both also appear to have also been filed using the subcategories within the miscellaneous SOC Occupational Classification of 15-1199.00 – Computer Occupations, All Other — a somewhat troublesome classification to establish as a Specialty Occupation, primarily because the USCIS’s Undisputed Holy Book of Professional Occupations, the US Department of Labor’s Occupational Outlook Handbook (“OOH”), does not maintain a detailed description of this classification’s educational requirements.
Ashwin Sharma quoted in the Times of India’s Article on S.386 & the New Grassley Amendment, Implications on the Fairness For High Skilled Immigrants Act
“Over the last decade, various bills to remove this per country cap, have failed to become law. S. 386 has been rescued from the fate of its predecessors through appeasement, specifically, by agreeing to amendments that would allow further restrictions on merit-based non-immigrant visas, particularly with regards to the H-1B programme. However, it is interesting to note that many of these so-called ‘new’ restrictions already exist in one form or another,” Florida based immigration attorney, Ashwin Sharma, told TOI.
For instance, even currently, H-1B sponsoring employers have to certify + that they are not favouring immigrant workers over American workers. They have to indicate how they calculated the prevailing wages they are offering to H-1B workers (but these records are to be made available only on specific request of the concerned authorities), explained Sharma.”
Breaking News: Bloomberg’s Laura Francis Confirms Significant Increase in H-1B Denial Rates for IT Professionals
I was interviewed by Ms. Francis for this story re: the implications of the latest data from USCIS demonstrating a significant increase in H-1B denials for the IT Consulting Industry. It is hoped that public scrutiny will bring a quick halt to the illegal denials of otherwise eligible H-1Bs petitions, which disproportionately target and affect Indian Nationals.
Though USCIS has been improperly targeting and denying H-1Bs over the last two years, most particularly those filed for Indian professionals, I predict that the last quarter of 2018 will constitute the highest denial rate in the history of the H-1B program. Even clearly approvable H-1B cases are queried and often improperly or even unlawfully denied; not difficult for USCIS to do when it ignores or mischaracterises the law.
An illustrative example of USCIS’ illogical activities and their dire consequences is highlighted in a Bloomberg article regarding a lawsuit filed after USCIS illegally denied an H-1B filed for Ajay Kuchikulla, an Oracle database administrator. Mr. Kuchikulla now faces the prospect of being forced to leave the U.S., along with his family.
Ajay Kuchikulla, an Oracle database administrator for Dublin, Ohio-based ERP Analysts Inc., was denied what likely would have been the last extension of his H-1B skilled guestworker visa prior to becoming a permanent resident, according to the complaint filed Jan. 28 in the U.S. District Court for the District of Columbia.
The denial came despite several prior approvals of H-1B extensions for Kuchikulla, whose job essentially has remained the same since he got his first H-1B visa in 2005, it said.
Kuchikulla was approved for his green card in 2012 but has had to wait for one to become available. Based on current projections of green card availability, he will be eligible to become a permanent resident around April 2020.
The complaint, filed by Virginia-based immigration attorney Jonathan Wasden, blames U.S. Citizenship and Immigration Services’ implementation of a February 2018 policy requiring additional evidence from information technology consulting companies seeking H-1B visas.
The policy is part of a coordinated Trump administration effort to ban IT consulting companies from the H-1B program, the complaint said. The USCIS relied on ERP Analysts’ inability to meet additional evidentiary demands placed on such companies to deny Kuchikulla’s visa, even though he works directly for the company and not at a third-party site, it said.
A representative for the USCIS wasn’t immediately available for comment.
The complaint filed on behalf of Mr. Kuchikulla on January 28, 2019 is ERP Analysts Inc. v. Cissna, D.D.C., No. 1:19-cv-00193: it makes for a great read. An excerpt that says it all:
“Without relying on statutory authority or promulgated regulations, Defendant [USCIS] has determined that there are two tiers of employers in the H-1B program: consulting companies and all other petitioning companies. It also has created a dizzyingly complex list of evidentiary requirements that only apply to consulting companies. Defendant explicitly conditions approval of an H-1B on compliance with these evidentiary requirements.
At present, it is impossible for a member of industry or even attorneys to read the statute, regulations, forms, and instructions to the forms, and understand what Defendant actually requires for approval of an H-1B petition. Moreover, Defendant’s written decisions provide neither law, nor an explanation of the basis of denial that provides clarity for how future petitions could comply with these unwritten rules. Defendant’s adjudications are wildly inconsistent, rendering disparate decisions on identical petitions filed by the same employer.”
Ultimately, when the dust settles and the H-1B denial numbers for Q4 2018 are revealed, one hopes that they are followed by a public outcry, adverse publicity, and a general accounting of such unlawful policies and their makers.
UPDATE ON 02/05/2019: Bloomberg’s Laura D. Francis reports that USCIS admitted its mistake and approved Mr. Kuchikulla’s H-1B petition. As Ms. Francis notes, USCIS can and does retreat in cases that threaten a review of its improper denials (by an actual Judge) because it fears the creation of any case law that would imperil its ability to continue to improperly deny other cases:
On 11/1/18, the Compete America coalition has issued a letter to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services raising the issue that, “The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity….”
The letter reiterates the major concerns that my colleagues and I have (frequently) raised, beginning with legal concerns about current H-1B adjudications because USCIS appears to have taken leave of two principles underscoring eligible H-1B petitions, “First, the job offered must be in “…an occupation which requires theoretical and practical application of a body of highly specialized knowledge.” Second, a four-year university degree or graduate or professional degree must be the “usual, common, or typical” requirement for the job. Patterns in H-1B adjudications over the last 18 months suggest other standards are being applied.”
The letter identified “patterns in H-1B adjudications that reflect new agency interpretations inserting salary requirements as an unstated prerequisite“, despite the fact that “nothing in the statute or regulations contemplates or suggests, that USCIS could ever take the position that it per se excludes or disfavors entry-level jobs in an occupation, or young professionals working in jobs in an occupation, as qualifying for H-1B specialty occupation approval.”
The origination of this particular pattern arose about 18 months ago, at the end of March 2017, when USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers. As I’ve previously indicated on this point that the Dept of Labor sets prevailing wage levels for H-1B professions every year in July, in other words, the DOL can and generally does increase these wage levels every year: there was no legitimate statutory or regulatory basis or need for USCIS to have inserted itself in an established wage determination process, nor for it suddenly declare ineligible for H-1B status those jobs with wages otherwise compliant with DOL requirements. This relatively new wage issue seems driven by motives that go beyond simple or logical explanations, especially when we note that the converse argument highlighting the fact that a Petitioner is paying a Level 3 or 4 (highest) wage as an element in establishing Specialty Occupation can be dismissed by USCIS as irrelevant:
Among its other points, the coalition letter also expressed concern as to “Patterns in H-1B adjudications that reflect new agency interpretations beyond the statute’s prerequisites for a “Specific Specialty” of study”. The letter highlights the fact that, “...[n]othing in the statute allows for administrative discretion to restrict a qualifying specialty occupation to only those occupations where “the specific specialty” necessary for the job is only obtainable through completion of a single, exclusive degree.” Despite this, USCIS will normally presume that, “…alternative degree options as the minimum requirement for a job suggest, standing alone, that a specific body of knowledge is not required.”
The U.S. Immigration Blog by Ashwin Sharma Has Been Nominated for The Expert Institute’s Best Legal Blog Contest
From a field of hundreds of potential nominees, The U.S. Immigration Blog by Ashwin Sharma (http://www.ashwinsharma.com) has received enough nominations to join the one of the largest competitions for legal blog writing online today.
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The competition will run from November 5th until the close of voting at 12:00 AM on December 17th, at which point the votes will be tallied and the winners announced.
The competition can be found at https://www.theexpertinstitute.com/blog-contest/
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Attorney Ashwin Sharma Interviewed by BBC Radio (Hindi) on President Trump’s Proposed Plans to End Birthright Citizenship in the U.S.
Ashwin Sharma was interviewed by BBC Radio (Hindi) on President Trump’s recent announcement that he intends to end birthright citizenship in the USA through an Executive Order.
By way of background, President Trump had stated earlier this week that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” However this is incorrect, as at least three dozen other countries, including Canada and Mexico, follow the principles of “Jus Soli”, Latin for “right of the soil”, as a near unconditional basis for citizenship.
Birthright Citizenship in the United States is guaranteed by the 14th Amendment to the Constitution, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, an Executive Order alone, even one with a magical signature, cannot effect the changes to Birthright Citizenship as proposed by the President.