Lawsuit challenges costly H-1B visa policy

Photograph of a U.S. Department of Homeland Security .USCIS policy has cost employers more than $3 billion since 2015, according to a new study

An association of IT companies has challenged a costly new US policy that requires employers to file amended H-1B petitions when employees work in a new geographic area.

In a recently filled lawsuit IT Serve Alliance with a membership of over 1,400 companies, many of them founded by Indians, argues the policy imposed by US Citizenship and Immigration Services (USCIS) in 2015 is unlawful.

Nearly 70% of the 85,000 H-1B visas for high skilled workers issued every year are used by Indian professionals.

Read: USCIS to accept selected H-1B petitions from August 2 (July 30, 2021)

The lawsuit cites a new analysis that finds the USCIS policy has cost employers more than $3 billion since 2015, an enormous sum, particularly for a measure attorneys believe was imposed illegally, according to Forbes.

A National Foundation for American Policy (NFAP) analysis found employers filed nearly 700,000 more H-1B petitions for continuing employment in the five years after the policy was introduced than in the five years before.

Based on H-1B filing fees ($1,960), premium processing ($1,410) and legal fees ($1,500), the USCIS policy has cost employers approximately $600 million a year, or more than $3 billion since FY 2015, according to NFAP.

The $3 billion estimate is conservative. It does not include H-1B filings in FY 2021 and assumes only 75% of employers used premium processing, even though lengthy USCIS adjudication times mean the total is likely closer to 100%.

USCIS started to require amended petitions whenever employers received a new labor condition application (LCA) from the Department of Labor in July 2015, after labeling the Simeio Solutions case an Administrative Appeals Office (AAO) precedent decision binding on adjudicators.

“From 2003 until 2015, USCIS had a stated policy of not requiring employers to file amended H-1B petitions when receiving a new LCA [labor condition application] from the Department of Labor,” according to the plaintiff’s motion for summary judgment as cited by Forbes.

“One suspicious aspect of the USCIS action in the Matter of Simeio Solutions, LLC, is that the company, Simeio Solutions, was no longer pursuing an H-1B petition for its employee when USCIS issued its binding decision,” they averred.

“The AAO’s definition of material change applied only prospectively because its definition had no retroactive or immediate effect on Simeio, whose petition apparently had already been automatically revoked,” note the plaintiffs.

“In Matter of Simeio, the AAO improperly established a general legislative rule through an adjudicatory proceeding contrary to the Administrative Procedure Act,” according to the plaintiffs.

“The definition of material change announced in Matter of Simeio is a legislative rule having at most a tenuous connection to the facts in that case, and USCIS applied the rule prospectively through a Policy Memorandum to the regulated public at large.”

The plaintiffs argue that the courts do not owe USCIS deference because Congress gave the Department of Labor, not USCIS, the authority to enforce the H-1B statute, particularly on the required H-1B salary.

“Neither the Secretary of Homeland Security nor USCIS have authority or jurisdiction over the wages, working conditions, or location of the foreign national’s employment,” note the plaintiffs.

“It should be disconcerting that a government agency can impose costs of $3 billion or more on employers with such a limited legal justification,” Forbes said noting, If the lawsuit is successful, it could save employers hundreds of millions of dollars a year.

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