Suing USCIS for Short H-1B Approvals

Below is an article regarding actions that can be taken to combat short H-1B approvals. Reddy & Neumann, P.C.’s Counsel for Litigation Jonathan Wasden and Attorney Steven Brown have prepared a short video on this topic that can be found here: https://www.youtube.com/watch?v=yrFkMX0NJwM

Introduction

One of the major challenges H-1B employers and employees face is USCIS’ new trend of granting approvals for less than the period requested in the I-129. This new line of USCIS adjudications stems from the February 22, 2018 policy memorandum in which USCIS put out the following guidance:

This new guidance has emboldened the Agency to step outside of their statutory and regulatory authority to partially deny multi-year requests for H-1Bs and shorten the validity periods. These shortened validity periods have sometimes been as short as months or even weeks, or by the time some petitions were approved, the H-1B validity period had already expired, due to this new policy. In doing this, the Agency provides no explanation as to the reason for the partial denials and exercises questionable authority when it comes to determining “speculative work.” Suing USCIS is a great way to combat these short approvals and to hold the Agency accountable. The ideal timeframe for filing a lawsuits against the shortened validity period is when there are at least 90 days remaining on the I-94, as discussed more in depth below

Short Term Approval Problem

By adjudicated petitions and giving short approvals, the Agency has created a trend where H-1B employers are required to continuously file for new extensions, continuously pay filing fees to the Agency, and continuously avail themselves to the Agency which has been increasingly inconsistent in their adjudications. There have been instances where employers have had to file multiple extensions throughout the year just to get a one-year extension of H-1B status. In fact, in recent conversations with our office, an employer informed us that they filed the same H-1B extension three times in a span of six months.

There are multiple concerns with having to file multiple and repeated extensions for H-1B employees. First, there is a significant increase in cost to the company. Filing H-1Bs require additional filing fees paid to the Agency, as well as any legal fees the company incurs. When some companies are filing as many as six extension requests in a three year period, the cost of continuing to file becomes astronomical.

Second, having to constantly file with the Agency creates concerns of approval. Any time an employer avails themselves to the Agency with a new petition there is a risk of denial, especially given the current USCIS climate. With the current adjudication trends, it is common for USCIS to approve a petition for three months, and for a company file an extension that will subsequently be denied. This now puts the employer in a position where they have to remove their employee from the project, the employee has to leave the United States, the company has to refile a petition and get an approval, the employee has to schedule visa interview and hope they do not get stuck with a 221(g), travel back to the United States, and begin work again. During this time, the employer is likely not generating revenue that would ordinarily be created by the employee working, even considering the costs of applying for H-1B. Additionally, during this period, the employee is not getting paid while he/she is incurring the expenses of traveling, not to mention the possibility of making for their home in the United States while also seeking housing overseas. If the employee has family with them in the United States, they also face secondary impacts to the family causing the children to be removed from schools and spouses having to travel as well.  When companies are forced to file multiple H-1B extensions in the same year for the same employee, the risk of denial and the impacts of such a denial are often more prevalent.

Finally, these short approvals have true business impacts.  A company that is unsure of its staffing capabilities from month to month due to USCIS short term approvals can have a significant impact on the business. A company may not be able to take additional contracts or may not even be able to perform on the contracts they have presently. The situation caused by USCIS has a chance of ruining business relationships with clients when an employee can’t fulfill the contractual obligations. Having a stabilized workforce is important for any business.

Federal Court Solution

The Reddy & Neumann, P.C. litigation team has a solution to how companies can push back on these short H-1B approvals through federal court litigation. This method has been previously tested, and has been shown to work. Our litigation team has provided a more in-depth article about the litigation strategy and process which can be found here: https://rnimmigrationlitigation.com/suing-uscis-for-short-h-1b-approvals/

Please feel free to contact our office if you want to get more information about the short term H-1B approval litigation. These short approvals continue to significantly impact businesses and H-1B holders, and we plan to continue to file lawsuits against USCIS for these short term approvals.

By: Steven Brown

Steven Brown is an attorney in the firm's H-1B Department and represents our business clients throughout the entire H-1B, H-4, and H-4 EAD process. Additionally, Steven works with clients with Department of Labor Compliance included assistance with wage and hours investigations. Steven prides himself in being able to provide his clients with creative solutions to complex immigration problems.