A group of information technology consulting companies is trying to force a federal court ruling on a government policy they say is preventing them from accessing workers on H-1B visas.
Businesses increasingly have been willing to sue U.S. Citizenship and Immigration Services over visa denials, particularly when it comes to the H-1B skilled guestworker program. In many of those instances, the agency has reversed course and approved the visa, thus making the case moot.
That’s good news for the businesses, but it also means there aren’t any court rulings on the legality of the USCIS decisions or policies.
That’s what the ITServe Alliance is trying to change, attorney Jonathan Wasden told Bloomberg Law.
Multiple Challenges to Policy
With the help of Wasden and Barnwell Whaley attorney Bradley Banias, members of the alliance have filed more than 40 lawsuits in the U.S. District Court for the District of Columbia. All of them challenge a February 2018 USCIS policy that imposes additional requirements on IT consulting companies seeking H-1B workers.
The policy is the basis for H-1B denials or approvals of the visas for only a short period of time, such as a few weeks or days. It’s already the basis of two lawsuits, one of which was filed by ITServe itself and some individual members who received negative H-1B decisions.
If the cases had been filed individually, it’s likely the USCIS “would’ve just tried to avoid the issue in litigation,” Wasden said. With so many cases filed in the same court at the same time, “the court can’t ignore it,” he said.
The USCIS can’t comment directly on matters involving pending litigation, an agency spokesman told Bloomberg Law.
IT consulting companies’ use of the H-1B visa program has received particular scrutiny from the Trump administration. Among the top H-1B employers, IT consultants are seeing a much higher denial rate—as high as 40 percent, compared to a 1 percent denial rate for other big tech companies like
The industry received President
Wasden, however, believes the administration may be trying to slow down the litigation to have time to “do as much damage to the H-1B program as they possibly can.”
He expects that the court will consolidate the cases and issue a preliminary ruling in about two months. There’s likely to be appeal from the losing side, he said.