Published February 20, 2020

By: Richard Hanus, Esq.

When a U.S. company seeks to have a qualified foreign national fill a professional type position in the U.S., an H-1B visa petition is the typical go-to route, although obtaining approval these days can be tricky.  Whether because of the limited yearly supply of H-1B visas available or due to the recent trend toward heightened, even unlawfully high, scrutiny, getting an H-1B visa issued for a qualified foreign national is getting increasingly more difficult.  When it comes to the list of reasons H-1B visas are getting harder to come by these days, we can now officially add government delay, as evidenced by a recent major lawsuit alleging the U.S. Department of Homeland Security violated the law by failing to take action on 150 H-1B visa petitions on behalf of healthcare workers that have sat pending for close to a year.

The lawsuit names the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services as defendants, claiming “untenable” agency delay as more than 150 H-1B petitions on behalf of healthcare professionals have remained pending and without a decision.  The lawsuit also alleges that these delays have been particularly hard hitting for our nation given our current health care worker shortage and various health scare crises we face, including the emergence of the coronavirus.

The plaintiff company, Management Health Systems LLC, which does business as MedPro, filed its lawsuit in D.C. federal court alleging the delays have been adversely impacting its business, along with the healthcare needs of patients of its various client facilities across the U.S.

MedPro’s complaint asserts “our healthcare industry cannot serve its constituency — patients — without an adequate supply of highly skilled and qualified healthcare professionals…….This is no more true than in times of health crisis, as we are experiencing now due to the threat of the coronavirus”.

MedPro is looking to the court to order the defendant agencies to issue decisions on the pending petitions within 15 days, as well as refund the extraordinary premium processing fee paid on each filing – a payment which typically guarantees a decision or decision-making step within 2 weeks of filing.

MedPro has alleged that up until the current administration, the named defendant agencies had generally been reliable in carrying out their duties mandated under federal law and funded by way of filing fees submitted by petitioning companies looking to fill positions.  In the 156 cases at issue, petitions were submitted on April 1, 2019 and the petitioned professionals were slated to commence work in the U.S. on Oct. 1, 2019.  Still as of February, 2020, no action had been taken.  Further developments on these legal proceedings will continue to be covered in this column.

PUBLISHED February 20, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois