Daily Labor Report®

Inability to Work Doesn’t Justify Expedited H-1B Order (1)

April 17, 2019, 1:45 PMUpdated: April 17, 2019, 4:47 PM

A worker who was denied an H-1B visa when she changed employers didn’t prove to a federal judge that she’s facing the kind of economic harm that justifies the court’s immediate intervention.

Usha Sagarwala asked Judge Rudolph Contreras of the U.S. District Court for the District of Columbia to order that she be granted all the benefits she would have received had U.S. Citizenship and Immigration Services granted her the skilled guestworker visa. The order would have kept those benefits in place while Sagarwala pursues her lawsuit over the H-1B denial.

But it wasn’t enough for her simply to say that her inability to work means she won’t be able to pay her mortgage and other bills and likely will have to return to her native India, the court said.

“The Court of course understands that the loss of Sagarwala’s salary would naturally impact her family’s economic circumstances, but she cannot meet her burden without ‘specific details regarding the extent’ of that impact,” Contreras wrote.

The judge did, however, say Sagarwala can bring the lawsuit over the H-1B denial despite the fact that it was her employer’s petition that was denied. That was one of the “high points” of the decision, said Sagarwala’s attorney, Jonathan Wasden.

The USCIS declined to comment on the case.

Approved for Green Card

Sagarwala is the beneficiary of an approved I-140, a form that employers submit to sponsor a foreign worker for a green card. Under the law, she was permitted to change employers while waiting for her green card to become available, as long as the new job was the same or similar to the one listed on the I-140.

The ability to change jobs can be critical for workers like Sagarwala, as the wait for green cards for Indian nationals can span decades.

“She changed employers doing basically the same job just for a new company,” Wasden said. By virtue of the green card process, the Labor Department already has determined that there aren’t qualified U.S. workers willing and able to fill that position, he said.

When deciding that Sagarwala isn’t necessarily facing severe harm from the H-1B denial, the court didn’t take into account that an H-1B denial means “you have a 180-day grace period before you start accruing unlawful presence,” Wasden said. Under immigration law, a certain amount of “unlawful presence” can trigger bars to obtaining legal immigration status in the future.

Contreras said Sagarwala can try again for an order keeping her H-1B intact during court proceedings. He didn’t make any decision with respect to whether the USCIS’ denial of the H-1B was appropriate.

The Justice Department represented the USCIS.

The case is Sagarwala v. Cissna, 2019 BL 135761, D.D.C., No. 1:18-cv-02860, 4/16/19.

(Story updated with additional reporting throughout.)

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

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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