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Homeland Security Faces Suit Over H1B Visa Delay

Jan. 16, 2019, 6:04 PM

The Department of Homeland Security is unlawfully dragging its feet in approving an H1B visa, management consulting firm McKinsey & Co. alleges in a new lawsuit in the U.S. District Court for the District of Columbia.

The department’s U.S. Citizenship and Immigration Services denied the visa petition of McKinsey’s employee Aashay Kirit Shah. That decision was reversed by USCIS’s internal appellate body, but nearly six months later USCIS has taken no further action and given no indication of whether or when it will grant Shah’s petition, McKinsey said.

“Time is now running out,” the company said. Under his current F1 student visa, Shah can only legally work for the company until Feb. 14. After that, the company will be forced to fire him, and Shah would have to leave the country, McKinsey said.

Shah works in the company’s healthcare systems, pharmaceuticals, and medical products practice group. Shah proved that this position qualifies as a specialty occupation for purposes of the H1B, the appellate body said.

Because the appellate board rejected all the agency’s substantive reasons for denying Shah’s petition, USCIS doesn’t have any lawful basis to deny or delay the visa, McKinsey argued. By failing to fulfill its ministerial duty, the agency is violating the Immigration and Nationality Act and the Administrative Procedure Act, the company charged.

The company asked the court to let Shah stay in the country and continue working for McKinsey while this case unfolds.

McKinsey is represented by Fragomen, Del Rey, Bernsen & Loewy LLP.

The case is McKinsey & Co., Inc. v. DHS, D.D.C., No. 19-00086, filed 1/15/19.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com