ITServe wins suit against USCIS over H-1B visas, employee-employer relationship

Ritu Jha-

The excitement was high at ITServe Alliance, a coalition of IT services companies in the United States, after the organization won a suit over H-1B visas against the US Citizenship and Immigration Services on Tuesday, March 10.

The US District Court for the District of Columbia ruled in the favor of the ITServe, calling the federal agency’s actions arbitrary and capricious in violation of the Administrative Procedure Act (APA).

The court invalidated the “Neufeld Memo” that the USCIS has been relying on since 2010, and the Feb. 22, 2018, internal “Contracts and Itinerary Memo.”

In addition, the court ruled that USCIS cannot require petitioners to produce client work assignments for applications for H-1B approvals. The court also ordered USCIS to provide its reasoning explaining its rationale for any short-term approvals or denials, in whole or in part, according to court documents.  .

Deepali Khadakban
Deepali Khadakban

“We are very excited today. It’s a big win because we no more need client letters, and they can’t anymore give the short-term approvals,” Deepali Khadakban, director PAC – ITServe Alliance, told indica in a phone interview.

The case was to resolve disputes over the employer-employee relationship and approvals and the random denials by USCIS.

ITServe Alliance is one of the largest associations of Information Technology Solutions & Services organizations in the US, representing more than 1,250 member companies mainly owned by Indian Americans. Since 2018 ITServe has been challenging the erratic H-1B adjudication patterns by the USCIS for the past 10 years.

The court on Tuesday, however, gave the agency 60 days to take action on all pending petitions, and ITServe expects those petitions to be approved.

Explaining the ruling, Khadakban said the court made four significant decisions, among those that the current USCIS interpretation of the employer-employee relationship requirement is illegal and cannot be enforced. USCIS introduced the concept of “employer-employee” based on an internal memo which the judge ruled is not legal.

Judge Rosemary M. Collyer
Judge Rosemary M. Collyer

US District Court Judge Rosemary M Collyer confronted and found absurd the USCIS requirements that employers provide proof of client work assignments for the duration of the H-1B period. She found it is unlawful and cannot be enforced. The court also ruled that these rules were also announced and applied without following appropriate rulemaking processes and cannot be enforced.

“They (USCIS) used to ask us for so many memos, and it was very difficult,” Khadakban said, “and they used to give H-1B work approval many times just for a day. That was absurd.”

Khadakban said the court asked USCIS to provide its reasoning behind any short-term approvals or denials, in whole or in part. It must now provide a written decision for any short-term approval explaining its rationale. Because the underlying short term approvals are now invalid, ITServe expects to see far fewer short-term approvals.

Also, the court ruled Tuesday that USCIS’s itinerary requirement is no longer enforceable because it was superseded by a later statute that permits employers to place H-1B visa holders in paid, non-productive status. This means, H-1B petitioners no longer need to provide the itinerary for H-1B applications.

“Our members serve big corporates like Google, Facebook, Bank of America, and our employees work at the clients’ site, according to the requirements, as contractors,” she said.

ITServe National President for 2020 Amar Varada said in press release, “A decision like this has been long overdue, we finally have the judicial system agreeing with the employers that USCIS has been out of bounds for a long time”.

ITServe’s Advisory Director Kishore Khandavalli welcomed the decision. “Rather than implementing the rule of the law, USCIS has resorted to random rule-making through internal ‘memos’, it’s game over and check-mate!”.

Former ITServe president Gopi Kandukuri commented, “As the national president in 2018, we embarked on this journey to challenge USCIS’s un-checked power, it’s finally vindication for all H-1B employees and employers.”



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