A Decade of H-1B Precedent Overturned – the Power of Federal Litigation

In recent years, employers hiring temporary, high-skilled workers in the H-1B category have seen massive obstacles thrown increasingly in their path.   Denial rates have quadrupled in recent years, from 6% in FY 2015 to 24% in FY 2018.  New legal requirements also were implemented, and impediments to approval meant that, as some experts stated,  no matter how well an employer responded to a Request for Evidence or appealed a Denial, many petitioners were faced with a “preordained denial.”

-This has left many practitioners and petitioners with one powerful, though sometimes daunting, option – suing the agency in federal court.  By taking the agency out of its own arena and placing its arbitrary decision making in front of an impartial judge, we at Joseph & Hall have seen this tool’s success in both large-scale litigation covering an entire group of people, as well as smaller scale litigation covering only a single individual.  The success of suing the agency in Federal Court is also not limited to the H-1B context – arbitrary decisions from the agency abound, and have only been increasing in recent years, and thus having a Judge review the manner in which the agency is conducting itself has been successful across the spectrum of immigration benefits.

Further, it is not just anecdotal evidence of success that should entice an employer to pursue this option.  Those who have tracked federal court litigation over these issues have repeatedly come to the same conclusion.  As one such study states simply, “The bottom line: sue!”

One major success that will change the process by which H-1B petitioners apply moving forward comes from the firm Wasden Banias, LLC in the lawsuit ITSERVE Alliance v. Cissna.  After suing the agency and a protracted legal battle, a settlement has been reached that effectively ends a number of USCIS’s illegal practices and unlawful requirements for H-1B petitioners.  As the linked article states, nearly a decade of unlawful rules and adjudicatory practices created by USCIS have been effectively eliminated.  Specifically, three major points from this settlement will be life-changing for any employer who applies for an H-1B worker:

• A 2018 Memo on “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” has been entirely rescinded. This means that employers will no longer be required to provide evidence what an H-1B employee will be doing every day for their entire three-year validity period – an impossibility for many employers who work on a contract basis for end clients.
• Enhanced evidence required to prove an employer-employee relationship will no longer be necessary.
• Finally, USCIS will no longer truncate the validity periods of H-1B employees absent an explanation, compliant with all relevant laws, as to why the validity period was shorter than that requested by the petitioner. This solves a problem where it has been reported that some H-1B employees would be approved, though for six months, a few weeks, a single day, or even with the status expired before the employer even received the approval.

As this success, and our own experience has shown, if you received a decision that doesn’t make sense, is contrary to the evidence that was submitted, or was frankly just plain wrong, suing in Federal Court is an option, and a powerful one at that, to fix the situation and hold the government accountable.  If you believe this situation may apply to you, please contact us.