Bloomberg Law: “Businesses Challenging Visa Denials Seeing Early Successes”

by Joseph McKeown

Around mid-2017, many immigration attorneys noticed a shift in treatment of H-1B visa petitions, the only visa type specifically named in President Trump’s “Buy American and Hire American” executive order. Requests for Evidence (RFEs) and denials by US Citizenship & Immigration Services (USCIS) dramatically increased by the end of fiscal year 2017, according to an analysis of USCIS data. Last year, some immigration attorneys adopted a new strategy: suing the government over visa petition decisions and RFEs. Now, it looks like those efforts may be paying off for some employers. According to immigration attorney H. Ronald Klasko, the majority of complaints he filed in the last year to a year and a half have resulted in decisions in favor of the employer. Klasko argues that litigation is now a necessary part of the practice of immigration law, especially in regard to H-1Bs. 

The American Immigration Council, a group that provides education about immigration and advocates for immigrants, has now helped file two lawsuits involving H-1B workers who were denied extensions on the basis of USCIS claiming the jobs described in the petitions are not “specialty occupations.” One lawsuit challenged USCIS saying the agency ignored the employer’s substantial evidence provided, while the other one asserts the agency did not properly read the Labor Department’s Occupational Outlook Handbook. At least twelve other lawsuits have been filed in the past year over H-1B denials alone. Leslie Dellon, an attorney with the American Immigration Council, tells Bloomberg LawIt’s not like the floodgates have opened, but there are far more suits being filed recently than in the past.” She adds she hopes USCIS “would take into account that these suits are being filed and there’s a reason the employers are going into court.”

From hospitals to hotels to technology companies, many businesses have admitted to struggling to fill jobs with the foreign workers they need. Some have expressed the sentiment that increased red tape has made it harder to secure employment-based visas petition approvals. Dr. Andrew C. Yacht, chief academic officer at Northwell Health, which includes Lenox Hill Hospital in Manhattan and North Shore University Hospital in Manhasset, NY, told The New York Times last year that there have been delays in processing “that we have not felt before.” Responding to these claims, USCIS said in a statement at the time that all petitions and applications are handled “fairly, efficiently, and effectively on a case-by-case basis.”

Foreign nationals are additionally finding some initial success in challenging USCIS policies. A North Carolina federal judge ordered that two international students challenging a USCIS policy on student visas be temporarily exempt from the policy, and a New Jersey federal judge refused to dismiss a lawsuit that challenges a policy for H-1B workers who are placed at third-party client sites. Attorney Jonathan Wasden of Economic Immigration Support Services in Reston, VA, tells Bloomberg Law that since people have been pushing back, claiming, for example, that USCIS doesn’t have authority to demand extra evidence in certain situations, the agency has  “miraculously” approved many of the petitions in question. Wasden, however, agrees that there is no way to predict USCIS’s decision making. He says: “You really have to divine which way the wind is blowing from the agency at any given time.