Why we sued USCIS for H-1B for employer-employee relationship and non-speculative work assignment denials
Reddy & Neumann, P.C. continues to fight for fair visa adjudication from USCIS. On Friday October 4, we filed a lawsuit in federal court challenging arbitrary and capricious denials of H-1B petitions.
We sued USCIS for unlawfully denying H-1B petitions based on an incorrect finding that the employer lacked an employer/employee relationship with the sponsored worker. Since a February 22, 2018 policy memo went into effect, USCIS has gone beyond the preponderance of the evidence standard and has significantly increased the evidentiary burden employers face when applying for H-1B visas. These actions by USCIS exceed regulatory requirements and are unlawful. In the lawsuit, we have two causes of action.
First, we argue that USCIS’s enforcement of their employer-employee relationship rule is unlawful. This is because the Department of Labor has already defined the employer-employee relationship for purposes of H-1Bs, and USCIS adopted this definition. USCIS’ adjudication trends focusing solely on proving the “right to control” are inconsistent with DOL or USCIS definition of an H-1B employer. The second cause of action focuses on USCIS’ unilateral call for documentation of specific, non-speculative work assignments. We argue USCIS does not have the authority to enforce this requirement, which came about only through policy memo and not through proper rule making procedures. Instead, the DOL has already created and enforces rules to prevent speculative work as they require employers to pay employees for non-productive time. A detailed article addressing these denials can be found: https://rnlawgroup.com/h-1b/36-h-1b/729-options-when-receiving-an-employer-employee-relationship-denial
Through litigation we seek to compel USCIS to overturn the decisions or reopen the cases and adjudicate them without the above mentioned arbitrary standards.
The plaintiffs in this lawsuit are represented by the Reddy & Neumann, P.C. Litigation Team consisting of Steven A. Brown, Kristina M. Hernandez, TuongVy T. Hoang, Justin A. Rivera, and Reddy & Neumann, P.C.’s Counsel for Litigation Jonathan D. Wasden.