- A federal judge has invalidated a set of U.S. Citizenship and Immigration Services (USCIS) guidance documents that allegedly led to a slower H-1B visa approval process and a high level of rejected visa petitions for information technology (IT) industry employers (ITServe Alliance v. Cissna, No. 1:18-cv-02350 (D.C. March. 10, 2020)).
- In the ruling, which consolidated 33 separate cases, the judge said the agency selected H-1B petitions from IT consulting businesses for special treatment, "dramatically slowing" the processing of those petitions and reducing employer access to the petitions' corresponding foreign workers. The judge further ruled that this action was not consistent with applicable law and that USCIS was required to engage in formal rulemaking.
- The judge ordered that a 2010 guidance memo updating the agency's interpretation of the employee-employer relationship for the purpose of denying visa applications cannot be enforced. Separately, USCIS' itinerary requirement has been "superseded by a later statute" and cannot be enforced. The judge also invalidated USCIS' requirement that employers provide proof of non-speculative work assignments for the duration of the visa period, which was detailed in a 2018 policy memo.
The judge's ruling is the latest in a series of challenges plaguing administration of the H-1B visa program. Researchers from the National Foundation of American Policy found in a 2019 report that USCIS' H-1B petition denial rate had reached 32% in the first quarter of the 2019 fiscal year, a significant increase from previous years. At the time, researchers said they believed the denials occurred due to USCIS' raising of proof standards for visa applications.
Other trends affecting the program included a decline in the number of H-1B visa approvals as well as an increase in the number of requests for additional evidence by the agency, HR Dive sister site CIO Dive previously reported. In recent years, the Trump administration made other alterations to the program, including a suspension of the agency's premium processing service as well as restrictions on H-1B contractors.
The broader conflict around the H-1B program has to do with the administration's encouragement of U.S. businesses to hire American citizens rather than foreign workers, set out in President Donald Trump's 2017 "Buy American and Hire American" executive order. The order encouraged regulatory authorities to review the H-1B program with the stated goal of introducing a more merit-based approach, sources previously told HR Dive.
But employers' own assessment of the administration's success is mixed; one consultant who spoke to HR Dive said that the H1-B program's cap limit is not sufficient to meet employer demand for the visas. And in recent years, that demand has only increased, with the H-1B visa petition cap often met soon after the period opens.
Employers have called for higher caps, but so far the Trump administration has resisted long-term changes, although some officials appear to agree with employers on the need for more skilled immigration. Shortly before his departure from the position, former acting White House Chief of Staff Mick Mulvaney told a private audience that the U.S. needed more immigrants to fuel economic growth. Mulvaney’s words, though promising, aren't likely to indicate a huge shift on the subject, sources previously told HR Dive.