Policies questioning employer-employee relationship and short duration VISA came under the scanner.
In a big win for IT conglomerates employing professionals on H-1B and other work visa holders, a US court has rejected some Trump administration immigration policies leading to increased H-1B denials.
In a far reaching decision in ITServe Alliance Vs L. Francis Cissna case, US District Judge Rosemary M. Collyer held many of the USCIS policies and memos responsible for H-1B denials as invalid.
According to immigration attorney Bradley Banias and partner with Wasden-Banias LLC the new ruling would definitely have an impact on how USCIS adjudicates H-1B cases.
Interestingly during the hearing of the case, the judge asked that if the USCIS memo has remained unchanged, what had led to the increase in the number of denials.
The court also touched upon many important points such as what constitutes employer-employee relationship.
Beginning 2018 many H-1B applicants began getting Requests for Evidence (RFEs) asking them to establish employer-employee relationship.
A number of visas have been denied on the basis that the employer would be placing the employee on a third-party site of a customer to work for his company.
USCIS claimed that in many cases it did not establish an employer-employee relationship.
But on March 10, Judge Collyer ruled, “The current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rule making, and cannot be enforced.”
In the recent past, a number of H-1B applicants were stunned to see short approval notices with in some bizarre cases a single day validity.
While short approvals were viewed by many attorneys as half denials as the duration for which the visa was applied for was not granted, it also posed serious challenges for companies to get work done within the allowed timeframe only.
Judge Collyer ruled: “USCIS has the authority to grant [H-1B] visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”
While USCIS may appeal the ruling, attorney Bradley Banias says it will have a very difficult time to win this appeal.
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