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Lawsuit claims USCIS overstepping authority

On Behalf of | Oct 25, 2018 | Immigration Law

A lawsuit has been filed challenging the claimed authority of United States Citizenship and Immigration Services to set H1-B visa time limits arbitrarily. Employers and people in California on H1-B visas might be interested in the specifics of the case.

USCIS has taken the position that it has the authority to set H1-B visa durations to any length according to its own discretion, leading to situations like a visa being approved for only one day or visas that expire before employers have received them. The attorney who filed the lawsuit said USCIS is essentially picking approval times at random, which can cause serious problems for employers. It’s nearly impossible to operate a business if H1-B visa periods are arbitrarily limited. Approvals that last six or fewer months are regular, especially in the information technology industry.

The plaintiff in the lawsuit claims that H1-B visas can be approved for periods of three years, less on the request of the employer. The regulations do not give USCIS the authority to set a time of less than three years unless the employer has asked for it, says the plaintiff in the case.

The USCIS cites two sources for its claimed authority: the itinerary rule from January 1990 and a proposed rule from 1998 that was never finalized. The complaint alleges that USCIS admitted the 1998 rule was beyond the legal authority of the agency. In a 2018 policy memo, USCIS said it would, in its discretion, limit approvals to the length of time the employee will have work in the U.S.

In cases where a California employee is seeking approval to remain in the U.S. or where an employer wants a longer term for an H1-B employee, an attorney might be able to help. An attorney with experience in immigration law may help with the drafting of USCIS forms and filings or communicate with federal officials on the client’s behalf.