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Consulting, Outsourcing Firms Suing Over H-1B Visa Program

Outsourcing and consulting companies have filed more than 40 lawsuits against the federal government, according to a new report by Bloomberg Law. Those lawsuits, filed in the U.S. District Court for the District of Columbia, claim that U.S. Citizenship and Immigration Services (USCIS) is too aggressive when it comes to denying H-1B visa applications, which those businesses depend on for workers.

The sheer number of lawsuits is designed to force a legal decision, one way or another. “The court can’t ignore it,” Bradley Banias, attorney for Wasden and Barnwell Whaley, which represents members of the ITServe Alliance (a consortium of IT consulting firms), told Bloomberg Law. For its part, the court wants the ITServe Alliance and the federal government to consolidate the cases, although USCIS has pushed back, arguing that the legal process is already underway.

According to new data released by USCIS, the number of H-1B applications hit with an RFE (Request For Evidence) skyrocketed in the first quarter of fiscal 2019, while approvals of completed applications hit with an RFE declined noticeably year-over-year. That’s surely impacting the strategy and planning of consulting firms, and powering the current spate of lawsuits.

The ITServe Alliance’s legal campaign against USCIS began last year, with a lawsuit that accused the agency of approving visas for too short a term—weeks, in some cases, rather than the “standard” three-year term. It sought a decision that would limit the ability of USCIS to set ultra-short validity periods.

USCIS has insisted that it has broad latitude to do whatever it wants with regard to the time limits of H-1B visas. “While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and that the petitioner will maintain the requisite employer-employee relationship,” the agency wrote in a February 2018 memo, “as documented by contracts, statements of work, and other similar types of evidence.”

Meanwhile, other interest groups have filed lawsuits alleging the government isn’t moving fast enoughin its restrictions of the H-1B program. For example, in 2018, advocacy group Save Jobs USA filed a suit against the Department of Homeland Security (DHS), arguing that the agency was taking too long to rescind the ability of certain spouses of H-1B visa holders to obtain the H-4 EAD, which would allow them to work in the United States. Whether or not that suit had any impact on the government’s scheduling, USCIS issued a proposal in February 2019 to remove “H-4 dependent spouses from the class of aliens eligible for employment authorization,” labeling it “economically significant.”

It’s clear at this juncture that the Trump administration’s attempts to overhaul the H-1B system will end up being a major, multi-front legal battle. Which side will win?

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