In Valorem Consulting Group v. USCIS, the United States District Court for the Western District of Missouri considered whether it was arbitrary and capricious for USCIS to grant an H-1b visa for only a one year validity period when the Beneficiary was expected to work on multiple projects for different clients. In this case, the District Court noted that the Administrative Procedures Act provides that it could only overturn USCIS’s decision if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The District Court reviewed the case and noted that the record showed that the Petitioner was a consulting company that offered a broad range of professional services to its clients. The Beneficiary was expected to “provide consulting services that vary depending on the client’s needs.” Documentation from the Petitioner and from two end-clients was also submitted. The court found that USCIS initially denied the case on the basis that the evidence the Petitioner had submitted was insufficient to demonstrate that enough specialty occupation work would be available. USCIS had expressed “concern that at some point [the Petitioner] could assign [the Beneficiary] to work for a client on a project that no longer qualified as a ‘specialty occupation.’” After an appeal was initiated, USCIS overturned the denial and approved the case for a one year period. The court dismissed the remainder of the claims other than the validity of the one year period. In reviewing the case, the District court noted that the nature of the Petitioner’s business led to the conclusion that it could not “represent what [the Beneficiary] would be doing on a regular and recurring basis.” It also upheld USCIS’s reliance on the Neufeld Memorandum. It stated that the Beneficiary was expected to provide services for the Petitioner’s clients and “that these tasks varied in nature and duration, making it difficult for USCIS to confirm that [the Beneficiary] was entitled to an H-1b visa and, if so, for how long.” Consequently, the District Court determined that USCIS’s decision to provide only a one year validity period for the Beneficiary’s H-1b was not arbitrary or capricious.
Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating international workers, Eh ?” Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.
A recent study released by the Partnership for a New American Economy found that the limitations placed on the number of new H-1b’s that are provided each fiscal year through the H-1b cap is harming the U.S. economy. After the H-1b quota was reached in the first week of April in 2013 and 2014, many companies announced that they are considering increasing their presence in other countries that have immigration systems that are friendlier to high-skilled workers. Specifically, Microsoft recently stated that it would increase its research and development sector in Canada, and plans to offer 400 new jobs in Vancouver by 2015. To contribute to the arguments that the current H-1b system is reducing the capacity of many employers to grow in the United States, a study by the Partnership for a New American Economy found that that cities where employers received a large number of rejected H-1b cap cases experienced less job creation and wage growth. It also discovered that the U.S. tech industry would have grown substantially faster in the period after the recession if such a high number of H-1b visas had not been rejected in the 2007 and 2008 lottery. Furthermore, the results of the 2007 and 2008 H-1b lottery caused the New York City / New Jersey area to lose the opportunity to create as many as 28,000 tech related jobs. Similar results were shown in the Washington, DC, Chicago, and Dallas Fort Worth areas. This study provides further support for the critical need for immigration reform.
The WSJ ran an interesting article explaining how the employment of H-1b workers actually serves to increase the wages of their US citizen colleagues. This study appears to be in direct contradiction to the propaganda spouted at the dog and pony show put on by Senator Sessions a few weeks ago.
The DHS issued a press release yesterday announcing a new proposed rule which would allow certain H-4 holders to obtain an EAD card. In essence, the proposed rule will allow H-4 spouses to be issued EAD cards when the principal H-1 holder has an I-140 approved or is 7th year extension eligible under AC21. The rule is not in effect now but, will go through the formal rule-making process which can often take many months. We will update you after the proposed rule is published.
And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem. Anyone say national registry of postings ?
When a Department of State Consular office sends an H-1b case back to the USCIS recommending revocation, the USCIS re-affirms their prior decision in approximately 30% of cases. For many other employment based visa cases, the percentage of re-affirmations is significantly lower i.e. L-1A: 18.02%; L-1B: 13.04%; O-1: 19.23%; and, P’s: 25.93%. In our experience, an even higher percentage of cases would be re-affirmed if employers chose to respond to the Notice of Intent Revoke (NOIR) but, often it will be 6 months to a year before the NOIR is even issued and by that time, the need for the employee or the specifics of the project have changed making the case moot. For employment visa cases to be decided on the merits, the DOS and the USCIS need a speedier process.
Last week, the USCIS provided a report to Congress on the characteristics of H-1b workers. 61% of petitions approved were for IT occupations, over 50% of H-1b’s were approved for persons with education beyond a bachelor’s degree, and the number of petitions denied increased dramatically in FY 2012; were among the many interesting facts provided in this report.