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.
Judge Rosemary M. Collyer of the US District Court for the District of Columbia ruled in the favor of ITServe Alliance, Inc. in its Administrative Procedure Act (APA) suit against USCIS. This is extremely positive news for H-1B Petitioners and Beneficiaries, and in line with the arguments that these stakeholders have been making before USCIS for some time.
The decision makes for some great reading as the Judge deftly fillets USCIS’s “strategic” attempts to ensure that its Policy Memos maintain sufficient legal standing to have the force of the law, but not sufficient to be legally challenged; the Judge also rejects USCIS’s interpretation on the issues of, “Employer-Employee Relationship” and “Specialty Occupation”, indicating that, “The CIS interpretations…are plainly erroneous“, and dismisses the Itinerary requirement quite simply because, “…is not in the statute.”
“The Court concludes that, as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”
Next action: “The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion and the Court will order that such reconsideration shall be completed in no more than 60 days.”
Additional Excerpt of the Decision Below:
“Approximately thirty-three cases have been filed in this District challenging the handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the cases have been consolidated before this Court with the agreement of the assigned Judges for briefing on three legal issues under Local Civil Rule 40.5(e):
1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.
See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the availability of work for a temporary foreign worker, and the foreign worker’s maintenance of status. Plaintiffs allege that CIS is applying new versions of these requirements, without engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S. employers.
The Court finds, as discussed below, that:
1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and the statute of limitations ran out long before this case was filed. It is subject only to an as-applied challenge.
2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.
3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.
4. The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.
5. The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.
6. CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.
7. CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”
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.”
USCIS Resumes Premium Processing for All H-1B Petitions – Could Earn Approx. $330,000,000 in PP Fees This Year
U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing for all H-1B petitions beginning today, Tuesday, March 12, 2019. This is welcome news for many petitioners and beneficiaries who have been subjected to significant delays in processing, and certainly, great news for USCIS itself. There is no doubt that Premium Processing fees, increased to $1,410.00 per petition last year, are an important source of revenue for USCIS, given that is “funded primarily by immigration and naturalization benefit fees charged to applicants and petitioners.”
Premium Processing fees are technically optional, but frequently paid to increase the speed of adjudication from several months to potentially as little as two (2) to four (4) weeks. This program was suspended and unavailable for many H-1B categories over the last 6-12 months during which time such professionals and their employers nervously witnessed (or were impacted by) adjudication delays of approximately 4-12+ months, as well as USCIS’s frequent internal changes to its adjudication criteria which allowed it to issue bizzare numbers of queries and denials of H-1B petitions in 2018.
On March 1, 2019, USCIS held a teleconference to discuss revised Form I-539 and new Form I-539A. USCIS provided the following updates during the engagement, among others:
- An official copy of the revised Form I-539 and new form I-539A will be published on the USCIS website on March 8, 2019.
- New rollout period:
- USCIS will continue accepting Form I-539 with an edition date of 12/23/16 until March 21, 2019, as long as it is received by USCIS by that date.
- USCIS will reject any Form I-539 with an edition date of 12/23/16 that is received by USCIS after March 21, 2019.
- Starting on March 22, 2019, USCIS will only accept the revised Form I-539 with an edition date of 02/04/19.
This information is currently posted on the I-539 page of the USCIS website.
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.
Ashwin Sharma interviewed by RedFM (Canada) and BBC Radio (India) on US HSI’s Fake “University of Farmington” Sting Operation
Attorney Sharma was interviewed by RedFM Canada, as well as BBC India about the below story on US Immigration’s fake university and the arrests of Indian students – BBC story (Hindi language) begins at about 5:30 min into radio program here:
India has made a diplomatic protest to the US after 129 Indian students were arrested for enrolling in a fake university.
The University of Farmington, advertised as based in Michigan state, was run by undercover agents from the Department of Homeland Security to expose “pay-to-stay” immigration fraud.
Prosecutors say those who enrolled knew that the facility would be illegal.
However, Indian officials say the students may have been duped.
On Saturday, the Indian Ministry of External Affairs (MEA) issued the protest to the US embassy in Delhi, expressing concern over the arrests and demanding consular access to those detained.
“Our concern over the dignity and wellbeing of the detained students and the need for immediate consular access for Indian officials to the detainees was reiterated,” the ministry said.
The fake university was set up in 2015 to try to catch foreign nationals who had initially travelled to the US on student visas and wanted to stay in the country, US media reported.
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: