After receiving several H-1B approvals for periods shorter than requested, IT consulting services company Flexera Global has sued USCIS in the federal court for the Southern District of Texas requesting an order directing USCIS to approve H-1B petitions for the periods requested.
The Trump Administration has made it harder to onboard workers requiring an H-1B visa. RFE and denial rates for H-1B petitions have skyrocketed, and delays in processing are expected. The Administration has particularly targeted H-1B petitions from IT staffing and consulting firms. First, it has questioned whether computer programmers were working in “specialty occupations.” Then, it has demanded that these same companies prove they will be in a bona fide employer-employee relationship with the visa beneficiary, and work is available for the beneficiary throughout the H-1B period. This required documentation includes items such as detailed itineraries and letters from “end-users.”
Staffing companies have seen a 34% to 80% denial rate, and they have been receiving approvals that might as well be denials. Seeking three-year visas, some approvals are valid for very short periods of time – weeks or months. In addition, given the processing delays, some companies are receiving approvals that are valid retroactively for a period that has already elapsed before the approval arrives. Companies often must reapply almost immediately, producing an unending cycle of filings and associated costs. Filing fees for some heavy users of H-1Bs already include a $4,000 surcharge, and USCIS has proposed additional fee increases for 2020.
Several suits have been filed arguing that USCIS violates the Administrative Procedure Act (APA) by reducing H-1B validity periods. In Flexera’s suit, USCIS has filed a Motion to Dismiss arguing that, as a matter of law, the Agency has the right and ability to grant short-term approvals – with or without explanation. The court ruling could go either way and could be favorable to H-1B petitioners.
Jackson Lewis attorneys will provide updates on this issue. IT staffing and consulting firms should continue to monitor developments.