By: Richard Hanus
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Recent Court Challenges to H-1B Visa Policies and DecisionmakingPublished October 19, 2018
Although the U.S. Congress has not changed the substantive law impacting how H-1B work visa petitions are decided, the agency reviewing these petitions – U.S. Department of Homeland Security/Citizenship and Immigration Services (“DHS/CIS”) – has implemented a variety of internal policies creating numerous novel obstacles to petition approval. Indeed, DHS/CIS has the authority to implement its own policies however when they go beyond limits allowed by federal law, impacted parties may seek redress in federal court.
Our current administration has gone out of its way to implement far ranging policies to make it harder to get immigration related filings, including H-1B petitions, approved. Some commentators have likened this agency initiative to the placement of an “invisible wall” to the lawful acquisition of immigration benefits. Not unexpectedly, the federal courts have seen a steady stream of lawsuits challenging DHS/CIS practices in this regard.
One example is a federal lawsuit filed last week by ITServe Alliance, an information technology trade organization, challenging DHS/CIS new, more stringent and practically insurmountable policy of requiring H-1B petitioning employers to provide thorough contractual documentation and specific itinerary information regarding exact timing and locations of the H-1B worker assignment for the requested period. For further information see ITServe Alliance Inc. v. U.S. CIS, case number 1:18-cv-02350, filed in the U.S. District Court for the District of Columbia
Another example is a lawsuit filed this week by the American Immigration Council on behalf of a large construction company and their employee where their H-1B visa petition seeking extension of a current long time H-1B worker’s status was “arbitrarily and capriciously” denied. In this case, the worker had been approved for H-1B visa status in the past as a construction engineer and although he was promoted to an elevated and more sophisticated construction engineering position, DHS/CIS concluded that the position at issue no longer qualified as a “specialty occupation”. Denials of H-1B visa extension petitions of this type have become more frequent under this administration –and with inconsistent and legally questionable bases cited to support DHS/CIS legal conclusions and decisions. For more details see Shandilya et al. v. USCIS, case number 1-18-cv- 02382, filed in the U.S. District Court for the District of ColumbiaPUBLISHED October 19, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois