Lawsuit Challenges H1B Policies Targeting IT Consulting Companies30 May 2019
A lawsuit challenging a number of recent H1B policies enacted by the U.S. Citizenship and Immigration Services (USCIS) has begun to heat up. IT Serve Alliance v. USCIS is the lawsuit filed by a group of IT consulting companies who are members of the organization called IT Serve Alliance*. The suit focuses on certain USCIS practices and policies that appear to be designed to adversely impact IT consulting firms and their business model.
Background on IT Serve Alliance v. USCIS
The lawsuit challenges several USCIS denials of H1B petitions and extensions that were based on policies seemingly targeting IT consulting firms. In the lawsuit, IT Serve Alliance specifically argues that certain recent H1B policy changes related to employer-employee relationship, non-speculative employment, and itineraries have been implemented with the intention of “end[ing] the IT consulting business model.” The plaintiff asserts that changes in the H1B program have been implemented without going through the requisite rulemaking process. IT Serve Alliance also argues that processing times for H1B petitions filed by IT consulting firms have increased dramatically, largely because the USCIS is issuing requests for evidence (RFEs) on these petitions at an alarming rate.
Judge Rebukes the USCIS Attorney
In a recent hearing on the case, U.S. District Judge Rosemary M. Collyer seemed particularly struck by the dramatic increase in the denial rate for H1B petitions filed by IT consulting firms. The USCIS attorneys argued that this was due to differences in the interpretation of the H1B rules, so no formal rulemaking was necessary. Judge Collyer, however, did not seem to buy this argument. As the judge bluntly put it, “You don’t want these people in this country.” [See H1B Visa Court Case Could Curtail Restrictive USCIS Policies, by Stuart Anderson, Forbes, 13.May.2019.]
The lawsuit is still ongoing, and it remains to be seen how the judge will rule. Regardless of the outcome, this case serves to highlight that the federal court system provides an avenue to stakeholders who are unable to find adequate relief through the USCIS or some other administrative agency. It is important that federal agencies not violate the law by reinterpreting policies, without notice, to the detriment of those impacted.
*Sheela Murthy, founder and president of the Murthy Law Firm, is an advisor to IT Serve Alliance on a pro bono basis.
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