Maksim Kabakou -

H-1B work visa ruling comes down to conjunctions

The Trump administration's efforts to stop the use of H-1B workers by IT contractors suffered a major setback in court. This week, a federal judge ruled that the government exceeded the law.

The Trump administration has been denying H-1B work visa applications for IT contractors through stringent regulation interpretations. The IT contractors sued, claiming the administration's governance was too rigid.

This week, the contractors won a significant court victory. U.S. District Judge Rosemary Collyer in Washington, said the United States Citizenship and Immigration Services (USCIS) "exceeded the law" and went too far in its interpretations of H-1B work visa rules. Her decision hung, in part, on arguments around the use of words, such as the difference between "and" and "or."

The H-1B work visa law requires, for instance, an employer-employee relationship between a company and its visa workers. This relationship exists "if you have the ability to hire, pay, fire, or otherwise control" the visa worker, said Jonathan Wasden, an attorney at Wasden Banias LLC in Charleston, S.C., representing the plaintiff, ITServe Alliance Inc. This Dallas-based group represents some 1,250 IT contractors.

It's the "or" in the employer-employee relationship definition that created a sticking point. The court's decision noted that USCIS has ignored the word "or" and "instead silently replaced it with an 'and.'" Doing so changed the rule, the court argued.

"What the court found was the agency's interpretation of the word 'or' was to read it as an 'and,'" Wasden said. Instead of just proving one of four things -- hire, pay, fire or otherwise control -- to establish an employer-employee relationship, "you have to prove all of them," he said. That created a high hurdle for visa approvals, he said.

The judge's ruling undercuts one of the major reasons for government visa denials, which may make it harder for the immigration authorities to deny visas. That decision could also mean that HR managers, legal departments and others with responsibility in the visa process may see better odds of success.

H-1B work visa denials may be preempted

USCIS can appeal the court's ruling. The agency hasn't decided on its next step and is reviewing the decision, a spokesperson said.

The agency [USCIS] has a history of ignoring individual federal court decisions.
Jonathan WasdenAttorney, Wasden Banias LLC

"The agency [USCIS] has a history of ignoring individual federal court decisions," Wasden said.

The court's ruling has no impact on the 85,000 H-1B work visas issued annually, but it may change denial rates.

The denial rates ranged from 20% to almost 40% for IT contractors. In contrast, H-1B work visa denial rates for firms using these workers as part of their own workforce, such as Microsoft, Facebook and Apple, have ranged from 1% to 3%.

The ITServe Alliance case combined 33 lawsuits by contractors appealing denials. This may make it harder for the government to ignore the court decision, said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.

"This is a great decision and really important because it homes in on what USCIS has been doing behind the scenes," in restricting H-1B visa use, Dalal-Dheini said.

Dalal-Dheini said she expects the government will appeal the decision because "it goes against their marching orders" detailed in Trump's 2017 "Buy American and Hire American" executive order. That order "was designed intently to restrict H-1B access to a limited group of individuals," she said.

If the government won't challenge the decision on appeal, Dalal-Dheini said it may seek new regulations that give it the authority lost in this decision. 

Next Steps

H-1B work visa petitions hit record high, despite pandemic

Trump's H-1B work visa ban creates six-month headache

Trump's H-1B work visa pay hike already in trouble

Biden wants permanent work visas, not more H-1Bs

Dig Deeper on Talent management

Business Analytics
Content Management
and ESG