New H-1B Lawsuit: USCIS Lacks Authority To Limit Visa Duration – Forbes


Director L. Francis Cissna of U.S. Citizenship and Immigration Services (USCIS) at a White House… [+] press briefing on December 12, 2017. (SAUL LOEB/AFP/Getty Images)
U.S. Citizenship and Immigration Services (USCIS) claims it has the authority to limit the duration of an H-1B visa to any length it believes appropriate. As a result, employers report receiving visa approvals that last for as little as one day, 12 days or, quite amazingly, even expire before they receive them. The chaos this has created for many employers has prompted people to ask a reasonable question: Does USCIS actually possess the authority to limit how long H-1B professionals can work on an H-1B visa? A new lawsuit may answer this question.
Current USCIS policy is producing absurd results, such as employers receiving petitions that have already expired by the time they are received in the mail. In one exhibit in the lawsuit (which can be found here), USCIS approved and mailed out an approval for an H-1B petition on August 29, 2018. However, the H-1B was only valid from June 15, 2018 to August 10, 2018, meaning the H-1B petition expired almost 3 weeks before it was mailed out to the employer.
Some companies are finding it difficult to operate their businesses in a rational way. “These companies are caught in a cycle of constantly applying for extension petitions and paying the filing and attorney fees, and as soon as the petitions are getting an approval, then the companies have to immediately turn around and file a new extension, because the approval is good for only a few weeks or months,” Jonathan Wasden, the attorney who filed the new lawsuit, told me in an interview. “USCIS is claiming the authority, in essence, to pick at random how long an H-1B petition is approved. This is a major problem because it is almost impossible to run a business when you don’t know if you’re going to have your employees for any reasonable period of time.”
Companies and attorneys have told me they are now regularly getting approvals that last 6 months or less. “It happens all the time,” attorney Vic Goel told me, particularly with any company providing information technology services. “We are getting approvals of 6 months or less,” said attorney Dagmar Butte. “We have to immediately turn around and file an extension, which means more legal fees and filing fees and less certainty for the beneficiary and the company.”
Current USCIS regulations say that an H-1B petition can be approved for 3 years, or less if the employer requests it, argues the plaintiff, while there is nothing in the regulation that says USCIS can set a period of validity of less than 3 years for other reasons. (USCIS can grant an extension beyond 6 years if an employment-based green card application is pending, under the law.)
Although lawyers have cited past cases of short approval periods, the problem became widespread starting on February 22, 2018, after USCIS released a policy memorandum that asserted it possessed the authority to limit how long an H-1B petition is valid: “While an H-1B petition may be approved for up to three years,” the memo stated, “USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and that the petitioner will maintain the requisite employer-employee relationship, as documented by contracts, statements of work, and other similar types of evidence.”
The new lawsuit, ITServe Alliance v. USCIS, asks a district court to determine, among other things, if the immigration agency is exceeding its authority and violating the Administrative Procedure Act (APA) by setting these short validity periods for H-1B petitions. “There is no legal justification for why USCIS is doing these short approval periods and the legal justification the agency cites doesn’t hold up,” said Jonathan Wasden.
The two sources of authority USCIS cites to impose short approval periods are the January 1990 “itinerary rule,” which predated the H-1B designation in the Immigration Act of 1990, and a 1998 proposed rule that never became final after Congress adopted a contrary position. “Defendant cites these two sources as authority when it demands employers provide exact itineraries showing when and where employees will perform work over the course of the entire H-1B visa,” according to the plaintiff’s complaint. “However, the itinerary regulation was promulgated prior to the passing of the 1990 INA [Immigration and Nationality Act] and has no applicability to the H-1B visa. In addition, the regulatory choices in the 1998 Proposed Rule were abrogated by statute, and never finalized.”
It is fascinating that in the 1998 proposed rule (that USCIS cites as authority to impose short approval periods) its predecessor, the INS, noted the 1990 itinerary rule (that the agency now also cites) was not practical for health care staffing and information technology companies, noting, “. . .  complete itineraries listing the dates and places of the alien’s employment, the Service recognizes such an across-the-board requirement is no longer practical in today’s business environment.”
The plaintiff’s complaint also notes the 1998 proposed rule was intended to address “benching,” when an H-1B worker is brought to the U.S. but put on the “bench” and does not work, and is not paid if a project is unavailable. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) included a simple legislative solution to the problem of “benching”: It required employers to pay an H-1B professional the required wage whether or not work was available. (I worked on the Senate Immigration Subcommittee during the bill and recalled this was a solution everyone agreed made sense.)
“Defendant’s 1998 Proposed Rule with its prohibition on speculative H-1B filings ran counter to the intent of Congress,” states the plaintiff’s complaint. “Consequently, it was never finalized.” The complaint also notes, “Despite its admission in the June 4, 1998 Proposed Rule that the itinerary regulation was ultra vires [beyond its legal authority], Defendant continues to demand that H-1B employers must provide a complete itinerary with the petition.”
Conservative supporters point to Trump administration efforts at “deregulation,” but it would be difficult to find a federal agency in recent memory that uses as heavy a regulatory hand against business as today’s USCIS. The agency’s regulatory agenda and its numerous policy memos are aimed at making it more difficult for employers to utilize what is generally the most important resource for a business – productive human talent.
“There’s a measure of arrogance that has enabled USCIS to tacitly expand its authority to serve as judge, jury and executioner when it comes to H-1B petitions that involve third-party work locations,” said attorney Vic Goel. “Because most businesses cannot wait the extended time that an appeal or lawsuit will entail, these arbitrary decisions have been largely unchallenged for years, thereby emboldening the agency.” He said that since USCIS is funded by user fees, it has an incentive to continue practices that generate additional millions of dollars in filing fees.
Looking past the legal arguments, this case is ultimately about the freedom of employers to be relieved of arbitrary rules designed, it appears, for the purpose of making it more difficult to run their businesses. More important, at stake is whether a government agency can make up rules – without regard to its own regulations or U.S. law.


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