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Universities and IT Firms Challenge USCIS Policies on Unlawful Presence and Third-Party Worksites

Judge's gavel on a black background.

As a lifelong fan and supporter of the foreign national community, it has been hard for me to watch the Trump Administration enact increasingly stringent visa policies and practices. Today I’m happy to report that in both the student and employment visa arenas, some of these policies and practices are being challenged in court.

Pushback on August 2018 Unlawful Presence Guidelines

In my post last September, I explained that the Administration directed U.S. Citizenship and Immigration Services (USCIS) to issue a memorandum on August 9, 2018 changing the calculation of unlawful presence time for F-1, J-1, and M-1 visa students.

The prior policy, set in 1997, started the unlawful presence time clock the day after USCIS formally found a nonimmigrant status violation while adjudicating for another immigrant benefit or the day after an immigration judge ordered the applicant excluded, deported or removed.

The August 9, 2018 memorandum directed adjudicators to consider unlawful presence accumulation starting on that date for any student not in status unless there had been a prior finding under the old policy. Students had to prove their status in good standing.

Errors in the Student Exchange Visitor Information System (SEVIS) could result in miscalculated unlawful presence time which could trigger visa denials or deportations.

Furthermore, foreign nationals found to have accrued more than 180 days of unlawful presence can be subject to a three-year ban from re-entering the United States and could not apply for visas, admission or adjustment of status without a waiver of inadmissibility. Unlawful presence exceeding a year could result in a ten-year ban.

On May 3, 2019 North Carolina Judge Loretta Biggs issued a nationwide injunction prohibiting the Department of Homeland Security and USCIS from enforcing the August 9, 2018 policy. In the lawsuit before her, Guilford College et al v. Mcalennan et al, several colleges and two individuals are challenging the policy, alleging it is legislative rule enacted without the required procedures of notice and comment dictated in the Administrative Procedure Act (APA).

Judge Bigg’s injunction forces the agencies to revert back to the prior policy pending resolution of the case.

New Third-Party Worksite Guidelines Also Challenged

Another USCIS memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.

The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018, also without any notice or comment period required by the APA. The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval.

This requirement comes from a rigid interpretation of the Department of Labor definition of employer which reads “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.

H-1B visa denial rates have skyrocketed the past two years, especially for contractors working at third-party worksites. Denial rates for initial H-1B petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but 34%-80% for companies that put H-1B visa holders at third-party sites.

Third-party site work factors highly in IT consulting. After having many H-1B visas denied or issued for short validity periods, several IT consulting firms filed lawsuits against USCIS. Those lawsuits have been consolidated into one under the aegis of the IT industry trade association ITServe Alliance.

Judge Rosemary Collyer presided over a court hearing of ITServe Alliance v. USCIS on May 9, 2019. Plaintiff attorneys produced data that showed from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’ H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.

Judge Collyer has taken issue with the disparate visa approval rates between different industries and USCIS’s requirement that contractors show three years’ worth of specific work assignments for H-1B petitioners when they are allowed “nonproductive” time as long as they are paid.

As Judge Collyer considers the case, she will rule on whether discovery is warranted to find out what has caused the different adjudications of H-1B petitions.

Discovery could be embarrassing for USCIS.

H-1B Approval Rates Are Down While Processing Times Are Up

Not only are H-1B approval rates markedly down for the IT industry, but requests for evidence and H-1B petition processing times have ballooned.

Requests for evidence (RFE) for all H-1B petitions have jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019. Meanwhile the number of petitions approved with a completed RFE has sunk from 80 percent to just over 60 percent.

In 2000 Congress directed USCIS to process H-1B petitions within 30 days. Current processing times stretch several months and are often a year or more.

I’ve experienced this first hand with my clients.

One of my IT consulting clients submitted an H-1B extension petition. The processing took so long that he completed his assignment and moved to a new one, triggering the need for a second petition for extension. The first petition resulted in an RFE, so that my client’s status officially expired. He had to leave the country and has had to work from a remote location for the new client until these petitions get approved.

Luckily his client is understanding. Not all clients are. IT consulting companies are getting hammered with the recent USCIS delays and RFE requests, losing business and vital contract employees.

I can’t predict how these two cases will end but I am hopeful that they will result in a return to kinder unlawful presence determination terms, better H-1B visa processing times, higher H-1B approval rates and fewer gratuitous RFEs.

Stay hopeful with me!