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)
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