H1-B Denials Slow Down As Lawsuits Go on the Rise

The USCIS is denying fewer H1-B visas as it witnesses a step-up in visa denial lawsuit rates, immigration attorneys have noted. This comes on the heels of an increase in the USCIS’s Requests for Evidence (RFEs) from H1-B visa applicants.

According to Deepali Khadakban, members of the ITServe Alliance, an industry body that represents more than 1200 SME and IT firms, have in the last two years increasingly gone on a legal offensive. More than 130 cases have so far been filed by employers to challenge H1-B visa denials by the USCIS.

Case in point. In 2019, nothing came out of an appeal to the USCIS, when an employee of Precision Technologies Corporation was denied an H1-B visa extension. But when faced with a similar situation in the following year, a lawsuit was fired instead and that seemed to work the magic. The visa extension case was reopened, request for evidence was made by the USCIS, and the visa was approved after documentation was provided.

Gopi Kandukuri, President of Saxon Global, on his part mentioned that H1-B cases are constantly being re-opened, with those currently under litigation seeing higher approval probability. In most cases, “the Department of Homeland Security (DHS), which the USCIS is a part of, steps in before the courts pass their verdicts on the H-1B denial litigations”, he concluded.

RFEs have thus become a popular means with which the USCIS tries to reverse the increasing number of H-1B denials, especially when such a petitioner takes legal action. In the first quarter of the fiscal year 2020, the USCIS granted H1-B visas to 67.2% of applicants, out of the total number of REFs it had sought.

Evin Green, managing attorney at EEG Immigration Law Group, has this to say: “My law firm saw a period in early to mid-2019 where USCIS was flatly issuing RFEs for every single H1-B application that was submitted”. He added that he spoke to several of his colleagues in other firms, who all confirmed the same unprecedented experience.

RFEs

Request for Evidence is procedural requests issued by the United States Citizenship and Immigration Services to H1-B visa petitioners through the latter’s employee or attorney.

The requests are intended in cases where the petition’s adjudicator or evaluator, believes there’s insufficient evidence or proof based on which the petition may be approved, believing that there is no clear factual or statutory basis for denying the visa.

When used, the RFE stipulates what additional evidence/proof is required to fill the void, as well as the inconsistencies/issues found in already-submitted evidence.

Once the H1-B applicant manages to address the concern, the application scales through and the visa is granted. Otherwise, the petition is denied.

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  • March 4th, 2020
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