USCIS Does an About Face on the Definition of “Temporary.” Did We Stand-By and Take it? No Way.

Joseph & Hall P.C. has never been the type of law firm to just stand idly by and let the government make nonsense decisions.  Last week was no exception.  JLF was able to settle a potential  federal lawsuit against USCIS last week.  One of our landscaping clients had been using the H2B program for 15 years and has brought in hundreds of landscapers on a seasonal basis over that time.  The owners of the business have grown this company from one truck and some equipment to a 4 million dollar annual business.  For the first time, USCIS this year issued a request for evidence asking the employer to prove that the employer really had a temporary “peakload” need for workers in landscaping in Colorado.  We were hired to respond to the request for evidence.  We submitted a detailed legal brief and substantial documentation establishing that the employer goes from 3 employees to over 50 annually between March and November.  Remarkably, after 15 years of approvals on the same set of facts, USCIS denied the petition.  We were not satisfied with this and jumped into action.  The employer agreed to let us sue USCIS in federal court under the Administrative Procedures Act.  We argued that the decision was arbitrary and capricious and that it ignored the substantial evidence submitted.  Because the employer needs the workers now, we also prepared a motion for a temporary restraining order asking for immediate relief.  We sent these documents to the U.S. attorney last week on Wednesday.  On Wednesday night at 9 PM, the U.S. attorney emailed and asked for a phone call the next morning, Thursday, at 8 AM.  We talked the U.S. Attorney through the history of this case and our legal arguments.  He asked to have until Monday to figure this out.  However, the next morning, we got a call that he should have a response by that afternoon.  Later that afternoon, we got an email indicating that the case had been reopened and approved and the approval notice had already been issued.  The employer made consular appointments for early Monday and the workers will be here soon.  We did this because it  was the right thing to do.  It is never fun to have to sue the government, but it is more important to earn the government’s respect than their love.  It paid off in spades.