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Businesses Challenging Visa Denials Seeing Early Successes

Feb. 4, 2019, 11:01 AM

Immigration attorneys last year adopted a strategy of helping and encouraging businesses to sue the government over visa decisions. So far, it looks like those efforts may be paying off for employers.

“A very high percentage of the complaints we have filed in the last year, year and a half are settled,” H. Ronald Klasko of Klasko Immigration Law Partners in Philadelphia told Bloomberg Law. The majority are resulting in decisions in favor of the employer, he said.

Litigation is now a necessary part of the practice of business immigration law, especially with respect to H-1B skilled guestworker visas, Klasko said. It’s no longer just a job focused on providing advice and completing paperwork.

“It’s not like the floodgates have opened, but there are far more suits being filed recently than in the past,” Leslie Dellon, an attorney with the American Immigration Council, told Bloomberg Law. “I would hope” that U.S. Citizenship and Immigration Services “would take into account that these suits are being filed and there’s a reason the employers are going into court,” she said.

Focus on H-1B Visas

The early positive litigation results point to an early success of the American Immigration Lawyers Association’s litigation task force, which Klakso leads. The task force was formed by the 15,000-member association to assist business immigration attorneys and their clients in bringing lawsuits over agency policies and decisions.

The focus primarily has been on H-1B visas, the only visa program to be specifically named in President Donald Trump’s Buy American and Hire American executive order.

Immigration attorneys noticed a shift in treatment of the visas around mid-2017, when the USCIS started sending an increased number of requests for additional evidence in response to petitions. By the end of fiscal year 2017, both requests for evidence and denial rates had increased, according to an analysis of USCIS data.

“Ensuring the integrity of the immigrant benefits system is a hallmark of this administration and one of our guiding principles in our effort to strengthen employment-based visa programs,” USCIS spokesman Michael Bars said in an email to Bloomberg Law. A 2018 policy allowing for outright denials of petitions without first seeking more evidence is “part of an ongoing effort to help faithfully execute and protect the integrity of our laws, cut down on frivolous petitions, reduce waste, and help to improve the integrity and efficiency of the immigration petition process,” he said.

The agency can’t comment on specific cases, he said.

‘Specialty Occupation’

The largest number of lawsuits challenge H-1B denials for jobs the USCIS says aren’t “specialty occupations” within the meaning of the visa. The USCIS maintains it hasn’t changed its policies in this area.

But the American Immigration Council, an affiliate of AILA, now has helped file two lawsuits involving H-1B workers who were denied visa extensions on that basis.

One asserts that the USCIS based the denial on an improper reading of the Labor Department’s Occupational Outlook Handbook. The other says the agency ignored the employer’s “substantial evidence” that the job qualifies for the visa.

At least 12 other lawsuits have been filed in the past year over H-1B denials alone.

So far the lawsuits are challenging individual visa petition decisions because the workers’ and employers’ circumstances make a class action difficult, Dellon said. But “I wouldn’t rule it out” as a future tactic, she said.

Policy Challenges

Another line of litigation focuses on direct challenges to USCIS policies.

A federal judge in North Carolina recently ordered that two international students challenging a USCIS policy on student visas temporarily be exempt from the policy. Businesses have been concerned about the policy’s effect on students pursuing optional practical training, a post-graduation work program.

Another federal judge in New Jersey recently refused to toss a lawsuit challenging a policy on the evidence consulting companies must provide if they place H-1B workers at third-party client sites instead of having them work directly for the company.

There’s also been some success when challenging the third-party policy outside of court, attorney Jonathan Wasden of Economic Immigration Support Services in Reston, Va., told Bloomberg Law. Wasden has filed two lawsuits directly challenging the policy, and another involving its application to an immigrant who’s been waiting for his green card to become available since 2012.

“People have kind of been pushing back” and saying the USCIS doesn’t have authority to demand the extra evidence, Wasden said. They will then “miraculously” get approved for the visas, he said.

But Wasden said there’s no way to predict what might happen with the USCIS’s decision making. “You really have to divine which way the wind is blowing from the agency at any given time” to determine whether the evidence submitted will get an approval, he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com