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Trump H-1B Visa Policy Info May Be Revealed in Wake of Lawsuits

May 17, 2019, 10:16 AM

A legal challenge to a Trump administration immigration policy is setting the stage for a new approach to H-1B litigation that could open a window into the inner workings of U.S. Citizenship and Immigration Services.

Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia is considering ordering discovery in a lawsuit by information technology consulting companies that say the agency is treating them differently than other companies seeking skilled guestworker visas. The move is rare in administrative law cases.

Discovery was “something we didn’t really ask for” because we thought it was “beyond our reach,” said Jonathan Wasden, who argued the case on behalf of the ITServe Alliance and other tech companies. “There’s a whole long list of things we want to get,” he said.

The extra documentation could shine a light on USCIS decision-making when it comes to H-1B visas, which have seen a dramatic increase in denials in recent months. The information could also aid immigration attorneys and their corporate clients that have filed scores of lawsuits over H-1B denials around the country. Temporary work visas like the H-1B were not part of the immigration plan President Donald Trump unveiled May 16.

The line of questioning by Collyer, a George W. Bush appointee, could suggest judicial skepticism and an increased willingness to make the administration justify its decisions rather than just deferring to agency action.

Wasden said the judge “seemed to be almost offended by the way the government had acted in these H-1B cases,” suggesting that the agency was “just playing a game with these people in an effort to keep them out of the country.” Wasden practices with Economic Immigration Support Services in Reston, Va. “If that’s representative of how courts are going to look at it,” then “we’re in a good position,” he said.

‘There’s Got to Be Something Internal’

This is an area where business immigration litigation “can advance to the next step,” said H. Ronald Klasko of Klasko Immigration Law Partners in Philadelphia. A court requiring the USCIS to produce additional documentation about its policies and decisions forces the agency “to come up with a reasonable settlement of a case” or “to produce documents that could be valuable to everybody,” he said.

Klasko, chairman of the American Immigration Lawyers Association’s litigation task force, said the group’s next move will be educating business immigration lawyers on how to get their hands on those documents.

“There are vastly different approval rates than there were a year or two ago, and there’s absolutely zero change in the law,” so “there’s got to be something internal” that’s driving the shift, he said. “The time is as ripe as it’s ever been for getting answers to those questions,” he said.

The agency, however, says it’s just ensuring that those who are approved for visas actually meet the requirements.

“Increasing our confidence in the eligibility of those who receive benefits is a hallmark of this administration and is a priority for USCIS,” spokeswoman Jessica Collins said in an email. “Employment-based petitioners who circumvent the protections outlined in our nation’s immigration laws not only injure U.S. workers, but also the foreign workers for whom they are petitioning.”

“USCIS has the duty to faithfully administer our nation’s lawful immigration system and ensure those requesting immigration benefits meet the requirements under applicable laws, regulations, and policies, and it is incumbent upon the petitioner, not the government, to show that he or she meets the eligibility requirements,” Collins said.

She declined to comment specifically on the litigation.

Challenge to 2018 Policy

The ITServe Alliance lawsuit challenges a February 2018 policy that requires consulting companies that place their H-1B workers at third-party work sites to provide documentation showing that there is an employer-employee relationship and that the workers have definite assignments throughout the duration of their three-year visas. The IT consulting industry has been the hardest hit by the jump in the H-1B denial rate.

Wasden and Charleston, S.C., attorney Bradley Banias, who’s also representing the tech companies, consolidated several cases involving the USCIS’s application of the policy to deny H-1B visas to consulting companies or approve them on an extremely limited basis.

The idea behind bringing a flood of similar cases was to prevent the USCIS from approving the individual H-1B petitions and thus avoid a court ruling on the legality of the policy.

That’s been the USCIS’s approach to many of the H-1B lawsuits that have been filed so far.

Class Action Coming?

“In the long term, the only way to have an impact on USCIS adjudications” is “a class action determination,” which the AILA task force also is looking into, Klasko said.

But Banias, who practices with Barnwell, Whaley, Patterson & Helms, isn’t confident that a class action is feasible.

There’s a window “to do more impact-through-volume litigation,” particularly with the USCIS’s current pattern of denying H-1B visas on the ground that the position isn’t a “specialty occupation,” Banias said. A class action, however, is “extremely dubious” because of the individualized nature of each H-1B decision, he said.

Different companies from different industries also have disparate interests despite the shared experience of having an H-1B denied, Banias said.

And there’s the issue of the extra time class litigation takes, which companies don’t necessarily have.

“You’re going to spend the next year” just litigating class action issues as opposed to the substance of the case, Klasko said. But companies that could benefit from a class action still could file individual lawsuits in the meantime, 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: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com