In a blow to the Trump administration’s efforts to crack down on IT staffing companies that use the H-1B visa to provide tech workers to other firms, a federal court judge has ruled that U.S. Citizenship and Immigration broke federal law with “arbitrary and capricious” actions and that the agency can’t make employers applying for visas list all the work a recipient would do.
Judge Rosemary Collyer declared invalid a 2018 U.S. Citizenship and Immigration policy requiring that companies applying for H-1B visas for workers who will be placed at other firms prove they have “specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition.”Show Full Article
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The ruling came as immigration lawyers across the country were complaining that Citizenship and Immigration under the administration of President Donald Trump was issuing visas only for the periods noted in work contracts, rather than for the three-year periods typically granted before.
“It does seem to happen most often with project-based work and in particular when the H-1B worker is going to provide services at a third-party site,” Andrew Greenfield, a lawyer with immigration law firm Fragomen, told this news organization before the ruling Tuesday by the Washington, D.C. District court judge. “It makes it harder to do business.”
Sometimes, approved visa terms were so short they were already expired by the time employers received notice of the approval, Greenfield said.
In the court case, a group called the ITServe Alliance that says it represents more than 1,200 information-technology staffing and consulting companies — many of them from India — sued Citizenship and Immigration, claiming the agency was slowing their H-1B visa processing and throwing up hurdles in an effort to destroy their industry.
That industry has come under fire from the Trump administration and critics who allege staffing and consulting firms use the H-1B to supply cheaper foreign labor, mostly from India, to companies including Silicon Valley’s tech giants, denying opportunities to U.S. Workers, undercutting wages and promoting outsourcing of American jobs. The H-1B, intended for jobs requiring specialized skills, has become a flashpoint in America’s immigration debate, with major tech companies lobbying for an expansion to the annual 85,000 cap on new visas — arguing that they need more of the visas to obtain the world’s top talent — and critics pointing to reported abuses and noting the H-1B allows payment of below-market wages.
The Trump administration has dramatically increased H-1B rejections for IT staffing and consulting companies, many of which provide outsourcing services to U.S. Firms.
But Greenfield and other immigration lawyers, while acknowledging bad players exist in the staffing and consulting industry, said the administration’s actions boosted legal costs and created other difficulties for legitimate companies that supply skilled labor, often for project-based work.
Melissa Salvador, a lawyer for Berry, Appleman & Leiden, said she started seeing shortened approval notices around the middle of last year. The new Citizenship and Immigration practice of providing visas for only as long as contracts specify ran up against the common industry practice of moving visa holders from project to project, Salvador said.
“I think the government is taking a narrow view of the relationship between the foreign national and the employer, by limiting the employment relationship to the contract,” Salvador said before the ruling.
Collyer in her ruling Tuesday said it was uncontested that Citizenship and Immigration applied “special treatment” to applications from IT staffing and consulting firms, “with the effect of dramatically slowing the processing of such visa petitions and reducing the accessibility by U.S. Employers to such workers.”
She wrote in her decision that the agency’s interpretation of the visa’s required employer-employee relationship was inconsistent with regulations and imposed without the proper rule-making process. The agency’s demand that employers provide proof of “non-speculative” work assignments for the duration of the requested visa period “is not supported by the statute or regulation and is arbitrary and capricious,” Collyer wrote, adding that the requirements “were also announced and applied without rule-making and cannot be enforced.”
The agency can grant visas for less than a three-year period but must explain its reasoning, Collyer wrote. The agency, she wrote, “exceeded the law.”
Citizenship and Immigration said it was reviewing the ruling and would not comment on it.
Ron Hira, a Howard University professor who studies the H-1B, said the ruling clears the way for IT staffing and consulting companies to continue dominating the H-1B program.
“The net result of the ruling is bad for U.S. Workers, bad for the U.S. Labor market, and bad for firms that use the H-1B to apply for truly specialized workers,” Hira said. “The latter are crowded out of the H-1B cap by these consultancy firms.”Hira noted that the ruling contains a line highlighting what he considers a significant flaw in the H-1B program. “An employer petitioning for an H-1B visa to admit a nonimmigrant worker does not need to test the local employment market and first hire any qualified, willing, and able U.S. Worker,” Collyer wrote.
The H-1B program, Hira said, “has gone off the rails and no longer serves its intended purpose – to fill genuine gaps in the labor market.”
Collyer noted in her ruling that under a 1998 federal law, H-1B holders can go through periods when they aren’t working, as long as they’re paid. Hira said, “It’s hard to square the goal of the H-1B program to fill genuine shortages in the labor market with the idea that you will flood the labor market with H-1B workers sitting idle waiting for contract jobs.”
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