A group of seven U.S. businesses Monday announced they have voluntarily dismissed an H-1B lawsuit against the U.S. Citizenship and Immigration Services (“USCIS”) after the federal agency agreed to accept and adjudicate previous decisions on H-1B nonimmigrant petitions previously rejected by the agency.
This lawsuit, filed in the U.S. District Court for the District of Massachusetts, by Meyner and Landis LLP and co-counsel, Mintz Levin and other firms, alleged the rejections were unlawful, and that USCIS acted in an arbitrary and capricious manner in refusing to accept timely and properly filed H-1B petitions subject to the annual statutory cap. More specifically, USCIS arbitrarily rejected H-1B petitions filed after October 1 simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1.
Based on this timeline, USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer was required to misrepresent the intended employment start-date by “back-dating” the petition.
Moreover, USCIS was inconsistent in not rejecting these petitions across the board—as some with an employment start date after October 1 were accepted without issue. There is no law, regulation or form instruction that require an employer to specify only an October 1 start date in the H-1B petition.
On April 29, 2021, the U.S. employers voluntarily dismissed the lawsuit after USCIS agreed to accept and adjudicate the H-1B petitions that the agency had previously rejected, and the employers had received receipt notices for their refiled petitions.
“We fully expected and received swift justice from USCIS for our client, RCI, and the other representative clients in this litigation who had fallen victim to the Service’s arbitrary and capricious attempt to reject certain cap-subject H-1B petitions but not others,” said Scott Malyk, Partner, Meyner and Landis LLP, Newark, NJ. “The agency had improperly rejected some H-1B petitions simply because the H-1B worker’s intended start date fell after October 1. This meant foreign workers were required to either start on October 1 (and not a day later) or the business, under the USCIS’ regime, was required to otherwise misrepresent the employment start-date by ‘back-dating’ the petition. On behalf of our client, we refused to do so and, thus, were left with no choice but to seek the appropriate remedy in the District Court.”
If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.
Effective Dec. 12, 2022, U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to allow USCIS to automatically extend the validity of Permanent Resident Cards (commonly called Green Cards) for lawful permanent residents who have applied for naturalization.
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