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.
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: