By: Bruce Buchanan, Sebelist Buchanan Law

In a lawsuit, ITServe Alliance v. USCIS, a nonprofit group seeking to advance and safeguard the interests of its IT member companies, asks a federal court to determine if the USCIS is exceeding its authority and violating the Administrative Procedure Act (APA) by setting short validity periods for H-1B petitions.

USCIS claims it has the authority to limit the duration of an H-1B visa to any length it believes appropriate. As a result, employers report receiving visa approvals that last for as little as one day, 12 days or, quite amazingly, even expire before they receive them. ITServe claims there is nothing in the USCIS regulations that says USCIS can set a period of validity of less than 3 years except if requested by the employer.

“These companies are caught in a cycle of constantly applying for extension petitions and paying the filing and attorney fees, and as soon as the petitions are getting an approval, then the companies have to immediately turn around and file a new extension, because the approval is good for only a few weeks or months,” said Jonathan Wasden, the attorney who filed the new lawsuit, to Forbes magazine.

The problem of short approval periods became widespread starting on February 22, 2018, after USCIS released a policy memorandum that stated:

While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary
will be placed in non-speculative work and that the petitioner will maintain the requisite employer-employee relationship, as documented by contracts, statements of work, and other similar types of evidence.

The USCIS cites two sources as authority when it demands employers show when and where employees will perform work over the course of the entire H-1B visa. However, according to the lawsuit, the itinerary regulation was promulgated prior to the passing of the 1990 Immigration and Nationality Act and has no applicability to the H-1B visa. Furthermore, the 1998 proposed rule, cited by USCIS as authority to impose short approval periods, was determined by USCIS’ predecessor, the INS, to be impractical for health care staffing and information technology companies. It stated, “complete itineraries listing the dates and places of the alien’s employment, the Service recognizes such an across-the-board requirement is no longer practical in today’s business environment.”

The plaintiff’s complaint also notes the 1998 proposed rule was intended to address “benching,” when an H-1B worker is brought to the U.S. but put on the “bench” and does not work and is not paid if a project is unavailable. “Defendant’s 1998 Proposed Rule with its prohibition on speculative H-1B filings ran counter to the intent of Congress,” states the plaintiff’s complaint. “Consequently, it was never finalized.” The complaint also notes, “Despite its admission in the June 4, 1998 Proposed Rule that the itinerary regulation was ultra vires [beyond its legal authority], Defendant continues to demand that H-1B employers must provide a complete itinerary with the petition.”

It will be interesting to see the results of this litigation. I will keep you abreast of any new developments.