Murthy Lawsuit Results in H1B Approval on Availability of Work and Right to Control06 May 2020
The Murthy Law Firm continues to be successful against the U.S. Citizenship and Immigration Services (USCIS) in federal court, this time over an H1B petition initially denied based on lack of availability of work and the employer’s right to control the H1B worker. Although another law firm filed the H1B petition initially, once the Murthy Law Firm filed the federal lawsuit for the improper H1B denial, the USCIS approved the H1B petition for the full period requested.
Background of Case
Prior to hiring the Murthy Law Firm, the employer filed an H1B change of employer petition for an IT position that would require the employee to work through a mid-vendor at an end-client location. As has become increasingly common in recent years, the USCIS issued a request for evidence (RFE) on the H1B petition. The USCIS noted that the contract from the end client did not detail the specialty occupation job duties to be performed. The USCIS further questioned the petitioning employer’s right to control the work of the H1B worker. The employer responded to the RFE, but the USCIS ultimately denied the petition on these two issues. It was at this point that the employer contacted the Murthy Law Firm for assistance. After reviewing the merits of the case, the Murthy legal team agreed to take on the case and recommended that the employer file a lawsuit against the USCIS for the denial of the H1B petition.
Swift Resolution of Case Made More Urgent by H-4 Wife’s Pregnancy
To further complicate matters, at the time the USCIS denied the H1B petition, the H-4 spouse of the H1B worker was pregnant with the couple’s first child. In fact, she was due to give birth in just six weeks, making it medically unsafe for her to travel to her native country of India. The family was understandably stressed at what should have been a joyful time in their lives.
Further, the H1B professional’s work and income was the family’s sole means of financial support. He was desperate to be able to return to work, not only for the much-needed income, but also to ensure that the family could maintain the employer-sponsored health insurance.
The entire situation was unravelling during the COVID-19 pandemic. The USCIS issued the H1B denial shortly before India suspended all commercial air travel. Hence, traveling to India also was simply not an option for the family.
Lawsuit Also Asks Court to Grant Work Authorization While Case is Pending
In addition to suing the USCIS over the denial, the Murthy legal team submitted a separate motion asking the court to stay the denial or grant a preliminary injunction to postpone the effective date of the denial. In other words, we asked the court to allow the H1B worker to resume working while the legal proceedings were ongoing. We argued that this was justified because we were likely to ultimately win the case on the merits, and the H1B worker would suffer irreparable injury because of the loss of income and health insurance, as explained above, especially given that his wife was just weeks away from giving birth.
Negotiations with the USCIS
In filing the motion requesting the stay, we sent a copy to the lawyer representing the USCIS in this matter. After discussing the matter with the government attorney, the Murthy Law Firm agreed to provide the USCIS with two weeks to review the matter before the judge would have to make a determination on the request for the stay. We explained that, given his wife’s pregnancy and our client’s need to return to work, we simply could not wait any longer than that. The day before the judge was scheduled to decide the matter of the preliminary stay, the USCIS reversed the denial, approving the H1B petition for the full period requested.
We are thrilled that we were able to swiftly secure H1B approval for our client, allowing his family to stay in the U.S. lawfully, maintaining his employment and the family’s health insurance, without further added stress and tension. We at the Murthy Law Firm are equally joyful that the couple are now proud parents of a healthy baby!
These examples of success, helping individuals and families by impacting their lives in deep and meaningful ways, give greater meaning to our work each day at the Murthy Law Firm. We are grateful to our client for allowing us to share his story to inspire others to seek and demand justice against all such unlawful H1B denials.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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