Comtrix Solutions Inc., a Virginia-based health care staffing company, got approval to bring in skilled foreign workers on H-1B visas for several clients in October 2018, six months after it applied.

But by that time, the original clients had moved on because they couldn’t wait that long for workers whose appearance wasn’t even guaranteed. When the government caught wind of the change, it accused Comtrix of lying about where the workers would be placed and revoked the H-1B petitions on the grounds of fraud.

Immigration attorneys say such revocations, along with denying extensions of H-1Bs that used to be granted routinely, are the latest in a series of steps by U.S. Citizenship and Immigration Services to crack down on the specialty occupation visa heavily used by tech companies. In April, employers submitted 201,011 petitions for 85,000 H-1B visas available starting in October.

“There’s no question that there are cases, H-1B petitions, that have been approvable for the last 20 years that aren’t approvable today,” said H. Ronald Klasko of Klasko Immigration Law Partners in Philadelphia. “The law hasn’t changed, just their standards.”

There are no publicly available records on how often H-1Bs are revoked.

But “revocations are now starting to be as common as denials,” which shot up to a total of 15.5% of all petitions decided in fiscal year 2018 from 7.4 percent the prior year, said Bradley Banias of Barnwell Whaley Patterson & Helms in Charleston, S.C.

The USCIS’ implementation of President Donald Trump‘s Buy American and Hire American executive order, released in April 2017, has resulted in a high level of H-1B scrutiny, with longer processing times and more denials for businesses, especially the information technology consulting industry. The industry has been flagged in the past for displacing U.S.-born tech workers.

Jonathan Wasden of Economic Immigration Support Services in Reston, Va., who’s filed a lawsuit on Comtrix’s behalf, accused USCIS of targeting staffing companies.

“They’re trying to prohibit the consulting industry from using the H-1B,” said Wasden, who recently joined the immigration firm Reddy & Newman as counsel for litigation. “It’s no accident that the delays” in H-1B processing last year “were really targeted toward the consulting industry,” he said.

Additional Hurdles

The authority to revoke H-1B petitions comes from the Department of Homeland Security regulations, agency spokesman Philip Smith said.

He said the USCIS may send a notice of intent to revoke if the worker is no longer working for the petitioning employer in the capacity listed in the original petition; there was fraud, misrepresentation, or the facts originally presented weren’t true; the employer violated the terms and conditions of the approved petition or the law; or the approval violated the regulations or “involved gross error.”

Separately, the agency said it “does not believe that recent policy changes have led to a purported increase in H-1B revocations.”

“H-1B revocations are based on 8 CFR 214.2(h)(11), and that regulatory provision, including the interpretation of that provision, remains unchanged,” an agency official said. “There are no pending policy changes for H-1B revocations.”

Immigration lawyers, however, point to two causes of the crackdown: an October 2017 USCIS memo overturning a George W. Bush administration policy that said adjudicators deciding H-1B extension applications generally should defer to decisions on the prior applications; and a February 2018 policy requiring employers that place their H-1B workers at third-party sites to provide additional documentation over and above what other employers must submit.

The 2018 policy requires employers to list every contract and work site the H-1B worker will be working on for the duration of the visa, a requirement that Banias and Wasden are suing over.

“They get away with it if no one challenges it in court,” Klasko said of the revocations. A challenge to the practice, as opposed to a lawsuit over a one-time revocation, “could be a good case to litigate,” he said.

Klasko, who heads an American Immigration Lawyers Association task force devoted to litigating business immigration issues, said he and others on the task force are considering whether to file such a broad challenge.

“They can’t just revoke” an H-1B because the current administration wouldn’t have approved a petition approved by a prior administration, he said. Rather, revocation requires that there was “clear error” in the original approval, he said.

Revocation creates an additional headache over and above delays and denials: the need to “get that person out of the country quickly” to avoid penalties for being in the U.S. unlawfully, Banias said. H-1B workers have 30 days to exit the U.S. after receiving a revocation notice.

It also means that, rather than simply reapplying for another H-1B visa, the worker’s application has to go through the H-1B lottery a second time, and may not get selected, he said.

Legal Challenges

Meanwhile, both Wasden and Banias have filed their own lawsuits.

Wasden disputes that Comtrix Solutions committed fraud by switching clients in light of H-1B processing delays. It’s only fraud if the information was knowingly false at the time the petitions were filed, and that’s not the case, he said.

In the past, the agency would’ve simply let the employer file an amended H-1B petition listing the new client and work location, Wasden said. But instead of allowing an amendment, the USCIS revoked the entire petition, he said.

Banias’s case is slightly different.

It involves a group of H-1B holders who are challenging a USCIS practice of sending notices of intent to revoke, or NOIRs, to a business that it knows no longer exists. That leaves the workers—who’ve since legally moved on to other employers—unable to defend the validity of their visas, he said.

“USCIS does not send a NOIR, or a copy of the NOIR, to an H-1B beneficiary,” Smith said. The agency does, however, still have a policy of sending a NOIR for a green card petition to a worker who no longer works for the employer that filed the petition, he said.

“That approach, however, is a narrow exception to the general rule that notice is issued to the petitioner, not the beneficiary,” Smith said.

Source: bloomberglaw.com
Published: 11 June 2019