Visa Programs for High-Skilled Workers
Businesses depend on highly skilled foreign professionals to remain competitive in today’s global market. In recent years, however, arbitrary decision making by the immigration agencies has often prevented U.S. employers from hiring the best and the brightest. Inconsistent outcomes in cases with similar facts, inexplicably restrictive interpretations of legal requirements, and the proliferation of Requests for Evidence are among the many obstacles that unjustifiably prevent highly skilled professionals from obtaining visas to work in the United States. Moreover, the agencies’ frequent reliance on obscure guidance and unwritten policies complicates the task of challenging bad decisions through litigation.
The LAC is working to tackle these problems by using the Freedom of Information Act (FOIA) to increase transparency and accountability, undertaking litigation where appropriate, and providing practice resources to help lawyers challenge unlawful agency action in court.
H-1B Validity Period Litigation
Valorem Consulting Group, LLC v. USCIS, Case No. 4:13-cv-1209-ODS (W.D. Mo.). Valorem, an IT consulting company, petitioned to employ a software developer for three years in H-1B status as part of a project development team at its office. Initially, USCIS denied the petition, but later – after Valorem, represented by AILA member Susan Bond, filed suit – approved it for one year.
The Council’s Business Litigation Fellow, Leslie K. Dellon, became co-counsel in November 2014 after USCIS moved for summary judgment. Valorem claimed that it met the standard of proof for a three-year validity period based on the record evidence, while USCIS gave undue weight to three illustrative Statements of Work. Valorem emphasized the absurdity of USCIS’s position, which effectively requires a petitioner to provide proof of three years of contracts in order to receive a three-year validity period.
While the court concluded that USCIS’s approval of a one-year validity period was not arbitrary and capricious, there were some positive aspects to the decision. The court recognized, as Valorem had maintained, that USCIS must apply the preponderance of the evidence standard: “If the application [sic] and supporting materials demonstrate that the employer/applicant [sic] is likely to employ the alien for more than three years, or that the employment is open-ended without an anticipated termination date, then the visa [sic] generally will be granted for the three years permitted by the regulation.” The court did not adopt or endorse USCIS’s position that a three-year validity period equals three-years-worth of contracts. However, the court decided that the beneficiary’s work in this case was project-dependent and what the court considered to be project-related information in the record supported USCIS’s decision to approve only one year.
Microsoft Corporation, BALCA Case Nos. 2013-PER-01478, 2013-PER-02904, 2013-PER-02962 (BALCA amicus brief filed November 7, 2013). The American Immigration Council, in collaboration with AILA, filed an amicus brief in an en banc case pending before BALCA, an administrative body at the Department of Labor that reviews denials of PERM labor certifications. The case turned on the proper interpretation of 20 C.F.R. § 656.17(k)(1), which requires employers to notify certain U.S. employees that they have laid off about new job opportunities before the employers are permitted to hire foreign workers.
The brief focused on the agency’s failure to provide fair warning about its interpretation of the notification requirement before applying a new, more restrictive interpretation. The Department is notorious for failing to provide guidance and leaving it to employers to guess at what processes the Department will find to be in compliance with the regulations. Here, the Department offered no guidance, but, through a pattern of decision making, established a practice of approving certain notification procedures. Amici argued that the Department acted arbitrarily and violated due process when it did an about face without giving prior notice. The parties reached a settlement on December 11, 2013.
Work Authorization Pending Adjudication of Timely Filed H-1B Extension Application
El Badrawi v. United States, 787 F.Supp.2d 204 (D. Conn. amicus brief filed November 5, 2010). Adopting arguments made by the American Immigration Council and AILA in an amicus brief, this case confirms that the government may not arrest H-1B employees for whom timely-filed extension applications remain pending. The decision recognizes that 8 C.F.R. § 274a.12(b)(20) allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike.
H-1B Fraud Investigations
AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010): On behalf of the American Immigration Lawyers Association (AILA), the LAC, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against DHS and USCIS seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.
The complaint alleged that defendants violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests and to declare that the requested records are not exempt from disclosure. Read our statement regarding the complaint.
Following the release of some heavily redacted documents by USCIS and an exchange of summary judgment motions by both sides, Judge Emmet G. Sullivan issued a lengthy decision in March 2012 in which he denied the government’s motion and partially granted AILA’s motion. He found the government’s privilege log to be inadequate and ordered the agency to better explain its claimed exemptions in the form of a revised Vaughn index. Subsequently, USCIS agreed to disclose the documents in full.
- Press Release
- Complaint with initial FOIA requests and agency responses
- Defendant’s Motion for Summary Judgment
- Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment
- Defendant’s Motion to Withdraw Motion for Summary Judgment
- Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment
- Defendants’ Cross-Motion for Summary Judgment
- Defendants’ Memorandum in Support of Cross-Motion for Summary Judgment
- Defendants’ Opposition to Plaintiff’s Statement of Material Facts Not in Genuine Dispute
- Plaintiff’s Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendant’s Cross-Motion for Summary Judgment
- Plaintiff's Response to Defendants' Statement of Material Facts Not in Genuine Dispute and Plaintiff's Statement of Genuine Material Issues.
- Defendants’ Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment
- March 30, 2012 Memorandum Opinion
- May 16, 2012 USCIS Letter
Documents released by DHS and USCIS on May 18, 2012:
- October 31, 2008 Neufeld Memorandum, “H-1B Anti-Fraud Initiatives – Internal Guidance and Procedures in Response to Findings Revealed in H-11B Benefit Fraud and Compliance Assessment”
- H-1B Petition Fraud Referral Sheet
- Compliance Review Report
Documents released by DHS and USCIS on November 9, 2012:
- H&L Fraud Referral Sheet
- H-1B BFCA Q&A
- Primary Fraud Indicators for Referral (9-23-12)
- Primary Fraud Indicators for Referral (8-28-12)
L-1B Adjudications: In May 2012, the American Immigration Council filed a FOIA request seeking records issued by USCIS and/or DHS, or used by USCIS and/or DHS, from January 2008 to the present, to instruct, train and/or guide (1) Immigration Service Officers or (2) employees of the Department of State, including but not limited to consular officers, on the adjudication of L-1B intracompany transferee petitions, including but not limited to the interpretation of the term “specialized knowledge”. In October 2012, USCIS produced documents in its possession as of May 14, 2012, the date it began its records search. The documents produced do not appear to have been intended for use outside of USCIS. The Council did not receive any documents from USCIS concerning instruction, training or guidance for Department of State employees.
The American Immigration Lawyers Association also obtained training materials used by USCIS for L-1 adjudications, courtesy of AILA member Eric Bord. While there is some overlap, the two productions yield more information when viewed as a whole. For example, the AILA production includes what appears to be the text of a (presumably PowerPoint) training presentation, with corresponding slide numbers, entitled “Policy Guidance on the Interpretation of the L-1B Specialized Knowledge Classification,” likely prepared with input from the USCIS Office of Chief Counsel, although USCIS withheld the slides themselves from this production and from the Council. However, USCIS produced to the Council a few pages of a draft, which identifies the Office of Chief Counsel as a participant, and corresponds to text in the training presentation, with the remainder withheld and labeled “Draft-Do-Not Disclose-Pre-Decisional.”
- USCIS Letter to the American Immigration Council on Transmitting the FOIA Production
- Entire Document Production
- Index to Documents Received from USCIS on October 5, 2012
- Index to Selected Documents Available Through AILA
- Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations and Labor Certifications (August 18, 2011)
- Mandamus Jurisdiction over Delayed Applications: Responding to the Government’s Motion to Dismiss (August 30, 2010)
- Mandamus Actions: Avoiding Dismissal and Proving the Case (August 6, 2009).
- Immigration Lawsuits and the APA: The Basics of a District Court Action (June 20, 2013)
- Failure to Appeal to the AAO: Does it Bar all Federal Court Review of the Case? (July 22, 2004)
- Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review (April 5, 2006)
- Whom to Sue and Whom to Serve (May 13, 2010)
- Equal Access to Justice Act (EAJA) Fee Application (December 15, 2008)
Hold CBP Accountable
actions taken across the country in an ongoing effort to establish accountability and transparency of one of the fastest growing agencies in the United States.
Administrative Relief Resource Center
Learn how individuals can prepare for administrative relief, find legal assistance and community education resource, and ways that you can help immigrants and immigrant-serving organizations.
- District Court Rules Grant of TPS Is an Admission for Adjustment of Status Purposes
- First Circuit Joins Other Courts in Holding That Immigrants Can Pursue Cases From Outside the United States
- Seventh Circuit Decision Expands Availability of Hardship Waivers to Lawful Permanent Residents
- ICE Agrees to Release Thousands of Previously-Withheld Records
- Court Says ICE Failed to Satisfy FOIA Requirements in Council’s Suit to Compel Disclosure of Records on Access to Counsel
- Eleventh Circuit Holds That Filing Limitations on Motions to Reopen Are Subject to Equitable Tolling
- Visa Bulletin “Do-Over” Undercuts Visa Modernization
- First Step in Visa Modernization: Making the Wait More Palatable
- Five Families Released After Prolonged Detention
- Restrictionists Continue to Attack H-4 Work Authorization
- Government Ordered to Promptly Release Children From Family Detention
- Court Issues Decision in Washtech, Case Challenging Training for U.S.-Educated Noncitizens
- Annual Review of State-Level Immigration Policy Still Trending Pro-Immigrant
- The Government Doubles Down on Locking Up Immigrant Mothers and Children
- Insider Speaks Out Alongside Formerly Detained Mothers Seeking Protection in the U.S.
- Court Finds Federal Officers Can be Sued for Mistreatment of Immigrants in Detention
- Judge’s Order in Flores Should Signal the End of Family Detention
- White House Report on Improving Our Legal Immigration System: Too Little Too Late?
- Some 3-Year Work Permits Being Recalled by USCIS
- Appellate Court Hears Oral Argument in Texas v. United States
- U.S. Settles With 4-Year-Old U.S. Citizen They Wrongfully Deported
- Members of Congress Report on Texas Family Detention Center Visits
- Supreme Court Finds Conviction for Possession of a Sock Was Not a Deportable Offense
- Court Rejects Restrictionists’ Attempts to Derail Work Authorization for H-4 Spouses
- Immigration Appeals Court Reverses Position on Deportation Waivers
- Why DAPA Applications Were Not Accepted by USCIS on May 19, 2015
- Reports: Detention Doesn’t Deter Migrants and Refugees From Coming to United States
- Arpaio Faces Skeptical Judges In Lawsuit Challenging Obama’s Immigration Action
- Supreme Court to Decide Whether It’s Okay to Deprive a Person of His Day In Immigration Court
- No Justice For Family of Mexican Child Killed By U.S. Border Patrol Agent
- The Court Decision on Deferred Action Everyone Should Be Talking About
- Faith Leaders Visit Immigrant Detention Center as Mothers Begin Hunger Strike
- Immigration Agency Issues Long-Awaited Guidance on L-1B Visa Petitions
- Government Claims Children in Family Detention Centers Are Not Entitled to Protections
- Documenting Ongoing Border Patrol Abuses
- Immigration Action Provides Certain H-4 Spouses Work Authorization
- New Immigration Enforcement Policy Remains In Effect Despite Texas Lawsuit
- Supreme Court Hears Argument on Whether Government Must Justify Its Visa Denial
- The Detention of Children and Their Families is Still Unjust and Still Against the Law
- Unrepresented Children Still Being Fast-Tracked Through Immigration Hearings
- When is Possession of a Sock a Deportable Offense?
- U.S. Education of Foreign Students is Under Attack
- Do the President’s New Immigration Policies Really Mark the End of Secure Communities?
- How New Guidance Improves a Waiver Program to Limit Family Separations
- Five Things to Know About Deportation Relief for Some Immigrant Parents
- How Many Immigrants Could Be Eligible for Relief and Not Know It?
- Civil Rights Complaint Documents Government’s Failure to Properly Screen Asylum Seekers
- Third Federal Court Rejects Government Interpretation of ‘Admission’ into U.S.
- How USCIS Tried to Keep Out a Skilled Brazilian Steakhouse Worker
- How Can a Three Year Old Represent Himself in Court?
- Report Discloses Deportation of Central American Asylum Seekers
- Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported
- Inspector General Falls Short in Documenting Border Detention Conditions
- Why Groups Are Suing the Government over Rushed Deportation Process for Mothers and Children
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act
- Here Are Some of the Stories of Women Held at Artesia
- Why We are Suing the Government on Behalf of All Children Facing Deportation
- District Court Decides Some TPS Beneficiaries May Finally Become Lawful Permanent Residents
- SCOTUS Decides Immigrants Can “Age-Out” of Visa Petitions
- The DACA Renewal Process: Everything You Need to Know
- CBP Releases Report Critical of Agency, Issues Updated Use of Force Policy
- Summary Removal Procedures and Their Role in Rising Deportations
- New Data Show More Than Half a Million Immigrants Granted DACA
- Drop in Court-Ordered Deportations Means Little to Overall Deportation Numbers
- USCIS Releases Information About DACA Renewal Process
- Circuit Court Ruling Affirms Detainers Not Mandatory
- New Directive Clarifies Existing Use of Force Policy at CBP
- Customs and Border Protection Conceals Scathing Audit of Border Patrol’s Use of Force Policy
- What the DACA Renewal Process Should Look Like
- Petition Challenges DHS on Enforcement Priorities
- The Washington Post Exposes Sorry State of Immigration Courts
- Miranda-like Warning for Immigrants Argued in Ninth Circuit
- Why Is There a Disparity in DACA Application Rates Among Different Nationalities?
- Supreme Court Considers Restrictive Interpretation of Child Status Protection Act
- The Punishment Should Fit the Crime for Immigrants, Too
- Keeping CBP In Line With Proposed Reforms
- Understanding DACA's Education Requirement
- Supreme Court to Interpret Child Status Protection Act
- New York City Pilots Free Legal Representation in Immigration Court