H-1B employers sue USCIS over ‘arbitrary’ worker start dates

US visa


‘New H-1B backdating practice diverts sharply from over two decades of normative practice.’

Seven US businesses have sued the US Citizenship and Immigration Services (USCIS) challenging its arbitrary rejection of H-1B nonimmigrant employment-based petitions filed after Oct. 1 solely because their intended employment date falls after Oct. 1

A federal lawsuit filed Thursday in Massachusetts district court describes it as an arbitrary limitation not found in immigration laws, regulations, or USCIS form instructions, according to a press release from the American Immigration Council.

The suit seeks to limit restrictions on business immigration and stop USCIS’ arbitrary and capricious refusal to accept timely and properly filed H-1B petitions which are subject to the annual statutory cap on H-1B visa numbers allocated each year, it said.

In recent years, Indian professionals have been getting about two thirds of 85,000 H-1B visas issued annually to allow US companies to employ high skilled foreign workers in ‘specialty occupations’.

READ: A new $350 million lawsuit challenges H-1B visa fees (January 27, 2020)

These include 65,000 regular H-1B cap subject visas and an additional 20,000 H-1B visa if the beneficiary has a master’s or higher degree from a US university.

In 2020, USCIS replaced the mass filing of H-1B petitions in April with an annual registration process which opens in March—several months before the federal fiscal year begins on Oct.1.

“This new practice of requiring H-1B backdating diverts sharply from more than two decades of the normative practice in connection with H-1B applications,” the lawsuit submitted

“Historically, H-1B sponsors listed Oct. 1 or any start date thereafter, so long as the date for commencement of H-1B employment was within six months of filing,” it added.

“There is no law or regulation that requires an Oct.1 start date for a cap-subject H-1B petition and neither do USCIS’ instructions,” said Leslie K. Dellon, staff attorney on business immigration at the American Immigration Council.

“Requiring an Oct. 1 start date would mean that only a foreign professional who is able to start work precisely on Oct. 1—and not a later date in the fiscal year—could receive an H-1B visa number unless their US employer affirmatively misrepresents the employment start-date.”

“Such an absurd result is not reflected anywhere in the statute or regulations,” Dellon said.

In a joint statement, Mintz Members and co-counsel for the plaintiffs Douglas Hauer and Laurence Schoen said that, “There is no legal basis for USCIS’ rejection of plaintiffs’ properly filed H-1B petitions, and this process of backdating is unlawful.”

“We hope that the agency will right this wrongdoing and cease from penalizing employers for not complying with an unwritten rule without any basis in statute, regulation, or published policy.”

The American Immigration Council is co-counseling with Mintz Levin, Cohn, Ferris, Glovsky and Popeo, PC; Joseph & Hall P.; Meyner and Landis LLP; Driggs Immigration Law; and Barnes & Thornburg LLP.

A copy of the complaint is here.

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