H-1B visa policy for staffing companies struck down, again

Washington, DC: A second federal court has ruled that a policy for employers that place H-1B high-skilled guestworkers at third-party worksites can’t be enforced.

The U.S. District Court for the Northern District of Georgia found invalid a February policy memo from U.S. Citizenship and Immigration Services requiring information technology staffing companies that place their H-1B workers at third-party sites to list each site where a visa holder will work for the visa’s entire three-year term, and requiring petitioners to prove they would remain an “employer” for the visa’s duration.

There is “no basis” in federal immigration law or the agency’s regulations for “requiring a petitioner to submit evidence of specific, qualifying work requirements and micro-location information for every single day of the visa period,” Judge Amy Totenberg ruled.

“Accordingly, the Agency’s 2018 interpretation of the statute and regulations, as applied in the instant case, is owed no deference,” she said. “Once again, if the Agency finds that there is a policy justification for requesting all of this information, it possesses the authority to promulgate new regulations by notice and comment.”

This is the second win for employers of H-1B workers who have turned to litigation to battle visa petition denials. The U.S. District Court for the District of Columbia dealt the first blow to the agency’s third-party placement memo in March. In the wake of that ruling, the agency has reopened and approved over 50 H-1B denials.

“The takeaway is that no court in the country is likely to come to a different resolution at this point in time on these issues,” said Jonathan Wasden, an attorney for the plaintiffs. “I think the writing is on the wall for the government and they’re going to have to abandon this position.”

The lawsuit was filed by Serenity Info Tech Inc., Whiz Global LLC, Keshav Consulting Solutions Inc., Smartworks LLC, Tetrasoft Inc., PVK Corp., and TekLeaders Inc.

Read More