USCIS to review rejected H-1B petitions with late start date

Arbitrary rejections restrict business immigration in the US, says American Immigration Council.

Seven US businesses have dropped a lawsuit against US Citizenship and Immigration Services (USCIS) after it agreed to accept and adjudicate previously rejected H-1B nonimmigrant employment-based petitions.

The American Immigration Council had filed the suit on behalf of the seven firms in March challenging USCIS’ arbitrary rejection of H-1B petitions filed after Oct. 1 solely because the H-1B workers’ intended employment start date fell after Oct. 1.

The lawsuit alleged that based on this timeline, USCIS created an absurd choice: foreign workers needed to start on Oct. 1 (and not a day later) or the US employer had to misrepresent the intended employment start-date by “back-dating” the petition, according to an AIC press release.

READ: H-1B, other extensions may become smoother in Biden era (April 28, 2021)

Filed in the federal district court for the District of Massachusetts, the suit sought to 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.

The H-1B visa category is for employment of highly educated foreign professionals in “specialty occupations” that require at least a bachelor’s degree or the equivalent in a specific specialty.

Over the last few years, Indian professionals have been getting over 70 percent of 85,000 cap subject visas, including 20,000 for those with master’s degree.

READ: More than 30 lawsuits filed against USCIS over H-1B rejections (May 17, 2019)

“Arbitrary rejections restrict business immigration in the United States. The resolution of this case showcases the importance of litigating to challenge unlawful agency actions and advance a fair process for employment-based immigration,” said Leslie K. Dellon, senior attorney (business immigration) at the American Immigration Council.

“We dismissed the lawsuit because USCIS promptly corrected its error,” said Mintz Levin co-counsel for the plaintiffs Douglas Hauer and Laurence A. Schoen.

“All of our clients’ applications have now been accepted by USCIS. It is unfortunate that legal action was required. But we thank USCIS for doing the right thing.”


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Trump talks about changes in H-1B Visa, including a possible citizenship (January 11, 2019)

Trump’s tweet on H-1B and path to citizenship evokes lukewarm response (January 12, 2019)

Waiting for the Wait to End: The human face of Indian immigrants caught in the Green Card backlog (December 4, 2018)

H-4 and H-1: Time for Indian immigrants to speak up on immigration policy, says author Amy Bhatt (January 5, 2019)

The unstable life of Indians on H-1B visa in the US due to visa renewal policy (October 28, 2016)

High-skilled Indian workers, DALCA kids, rally on Capitol Hill to clear green card backlog (June 15, 2018)

Reverse brain drain – the experience of three couples who moved back to India from the US (January 20, 2014)

Indians received more than 75 percent of H-1B petitions approved in FY 2017 (May 2, 2018 )

US companies say they need more foreign workers, not less (March 6, 2018 )

Chuck Grassley again denounces H-1B visa program (January 18, 2018)

USCIS says it’s not ending H-1B visa extensions (January 9, 2018)

Will 750,000 Indians on H-1B be ‘self-deported’ from the United States? The answer is no. (January 7, 2018)

Proposed move to end H-1B extensions may affect up to 400,000 Indians in US (January 2, 2018)

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