Can Foreign Worker Advocates Sue Their Way To Victory?

As predictably as the sun rises and sets each day, efforts to curb ongoing abuses present of America’s immigration laws are met almost immediately with litigation. Whether the plaintiffs are individuals, vested anti-enforcement interests or deep-pocketed business groups, most believe suing the government is an effective means to win cases they’ve failed to make in the court of public opinion or Congress. Will this strategy work for those who want to fundamentally change immigration policy as it did for advocates of regulating guns and tobacco?

Time will tell, but there is little doubt that it has proven to be a useful weapon for anti-reformists wishing to block, delay or end attempts to restore order to an immigration system, particularly with regard to action taken by U.S. Customs and Immigration Services (USCIS) to rein in abuse and apply stricter scrutiny in the H-1B visa program.

It has been no secret that H-1B visa application denial rates, specifically for Indian outsourcing firms, have risen during the Trump administration as USCIS and the Departments of Labor (DOL) and Homeland Security (DHS) have been more diligent in examining applications for various foreign worker programs.

“It’s not like the floodgates have opened, but there are far more suits being filed recently than in the past,” American Immigration Council attorney Leslie Dellon told Bloomberg Law.

Mother Jones’ data journalist Sinduja Rangarajan began building a database of more than 100 lawsuits filed against USCIS since 2006 after she’d heard similar anecdotes from immigration attorneys with whom she had spoken and had said the number of H-1B lawsuits they had filed in 2018 and 2019 was more than at any point in their their careers. Her work is not exhaustive, but comprehensive and provides insight into the explosion of lawsuits in the last few years.

What she found was that from 2006 through 2017, there were no more than four suits filed related to H-1B visas in a single year. In 2018, there were 29 and in 2019, 64 cases were filed. It is a fair bet that a similar upward trend is evident where other immigration reforms, including enhanced border enforcement and asylum policy, are concerned.

While quantity does not always translate into quality, the litigation strategy has resulted in some pivotal defeats for the Trump administration, including the Supreme Court’s finding that the administration failed to follow proper procedures in its attempt to rescind President Obama’s unconstitutional Deferred Action for Childhood Arrivals (DACA) executive action.

After two separate court rulings against USCIS, the agency reached a settlement agreement with ITServe Alliance, which sued USCIS over a requirements outlined in a February 2018 policy memorandum that H-1B holders working for third-party firms provide evidence of the specific jobs they would do, where they would work and the length of their stay. The rules were warranted, according to the memo, because it is more difficult to verify information when third-party, such as outsourcing firms, petition for H-1B visas.

The primarily Indian-run ITServe Alliance took aim at USCIS’s requirement because a majority of recent H-1B denials have involved cases in which the foreign worker is placed at a third-party site. The bet played out since the settlement of the lawsuit by USCIS reversed a decade of policies limiting employers of certain H-1B visa holders. That loss was cemented when USCIS announced in June that it was rescinding the 2018 requirements.

“The agreement provides further evidence that litigation is now a critical tool for combating restrictive USCIS policies and adjudications,” said Allie K. Dempsey of Klasko Immigration Law Partners.

 “We filed approximately 30 lawsuits challenging at least 60 full denials (of H-1B applications) and 30 partial denials,” said immigration attorney Bradley Banias in October of 2019. Banias’ firm has filed multiple cases on behalf of ITServe Alliance, including its most recent challenge to H-1B visa rules issued by DOL and DHS.

They managed to beat the U.S. Chamber to the legal punch in suing the Trump administration and followed up on October 21 by filing a motion for preliminary injunction to prevent he Department of Labor (DOL) from moving forward with changes to how the agency calculates prevailing wages in the H-1B program. Most of USCIS losses have been in cases where they were challenged on procedure. However, in this case the administration justified its expedited implementation of rule changes on exigent circumstances owing to the COVID crisis.

What is clearer with every new court filing is that opponents have deep pockets, long-term goals to weaken immigration law to the point of non-existence and that those engineering reform should sure that every single “I” is dotted and “t” is crossed.

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