Employment Law Daily Citing USCIS’ half-hearted review of H-1B petition, court stays removal proceedings pending appeal
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Monday, November 26, 2018

Citing USCIS’ half-hearted review of H-1B petition, court stays removal proceedings pending appeal

By Lisa Milam, J.D.

An employer that stood to lose an IT project manager to immigration removal proceedings secured a temporary injunction barring USCIS from acting while the company appeals the agency’s denial of its H-1B petition. A federal district court in the District of Columbia held that the employer was likely to succeed on the merits of its claim that USCIS’ decision to deny its petition was arbitrary and capricious. Noting too that the employee stood to suffer irreparable harm absent injunctive relief, the court granted the employer’s motion in part, in an order it stressed was limited in scope (Stellar IT Solutions, Inc. v. United States Citizenship and Immigration Services, November 19, 2018, Contreras, R.).

H-1B visa holder. The employee at the heart of this employment immigration dispute was a citizen of India who had lived in the United States legally since 2011. He held an H-1B nonimmigrant visa as an individual employed in a “specialty occupation” at Stellar IT Solutions, but in 2017 he hit his six-year maximum for such visas. In 2012, though, he had filed a labor certification application to support an I-140 permanent residency petition, and a final decision on that application remained pending. As such, the employer and employee argued he was eligible for at least one more year of H-1B status.

New petition denied. Stellar IT also filed a new H-1B petition, citing a change in his previously approved employment. He was to assume a different role in the same company: a Senior Project Manager Information Technology. However, he would be working on-site at Honda North America, for which Stellar is a subcontractor.

More info requested. USCIS wanted more information from Stellar about the nature of its relationship with the employee—specifically, about Stellar’s right to control him while he worked on-site at Honda. Yet before the deadline to submit such information had passed, USCIS denied the petition outright, finding that Stellar failed to prove it had an employment relationship with the employee and, also, that it failed to show the position in question was a specialty occupation.

Reconsideration dened. Stellar filed a petition to reconsider and also submitted evidence of its employment relationship with the employee, including its contractor agreement with Honda, which made clear that Stellar retained the legal right to assign him work and to hire and fire him, and that Stellar’s president would supervise him via weekly phone calls. A separate letter from Honda submitted to USCIS further evidenced the “specialty” nature of the work at hand: His position required a bachelor’s degree at a minimum, or a master’s degree with courses in IT, accounting and finance, or business management. Again, though, USCIS denied the petition. It found no employment relationship had been proven and that the position had not been shown to be a specialty occupation.

Appeal pending. Stellar then filed an appeal with the Administrative Appeals Office (AAO), contending that USCIS’ decision violated the Administrative Procedure Act. However, the employee was left without lawful immigration status in the meantime—and he will be forced to leave by November 27 or risk being denied admission into the country for a three-year period. So Stellar and the employee filed this action seeking to set aside the denial of the H-1B petition as arbitrary and capricious and, in the interim, to allow him to stay in the U.S. while the case is pending.

The court stressed that judicial restraint is typically warranted in such cases; still, it found that in this case, “limited judicial intervention” was appropriate: For one, “USCIS’s reasoning for denying the H-1B petition is squarely contradicted by the record and ignores critical evidence.” Moreover, the plaintiff would likely suffer irreparable harm were he forced to leave the country indefinitely.

Likelihood of success. In the court’s view, Stellar assembled an ample record of its employment relationship with the employee, including the “specialty” nature of the role in which he would serve, and USCIS had given the evidence short shrift. As such, Stellar was likely to succeed in its effort to show USCIS was not reasonable in concluding it did not provide sufficient documentation of how it would oversee its employee’s work at the client site. “USCIS was free to take issue with the substance, credibility, or weight of the evidence submitted and explain why it took such issue,” the court said, “but the agency was not permitted to pretend the evidence did not exist.”

With respect to USCIS’ conclusion that Stellar IT failed to show the employee would be working in a specialty occupation, again, the court said, “[r]easonable minds could debate whether the record supported the finding he was to be engaged in a specialty occupation. USCIS was hung up on the fact that there was insufficient evidence he would be involved in “daily use of computer occupations,” but the information in the record indicated he would regularly be engaging with computers. His role was to review software for compliance with Generally Accepted Accounting Principles, he would need to be familiar with Sarbanes-Oxley Act requirements for IT controls, and his position would operate “in the context of large scale Information Technology Project Management.” Again, it was not irrefutable that the employee was engaged in a specialty occupation, but the agency acted as though it were “completely in the dark” as to the nature of the employee’s position. If USCIS was going to find the evidence insufficient, “it needed to explain why.”

As for the degree requirement, the court said the employer didn’t even need to make a showing that a degree in a specific specialty was required for this role. It was enough that in response to USCIS’ request for evidence (RFE), Stellar cited the Occupational Outlook Handbook—which USCIS deems an “authoritative source”—and the OOH states that the position at hand generally requires “a bachelor’s degree in computer or information science and related work experience.” The agency never mentioned this supporting evidence in its final written decision, must less attempted to compare the job at hand with those of a generic IT project manager. “And it is not the Court’s responsibility to make that comparison now.” USCIS’ written decision likely did not comport with the APA, the court found, and the plaintiffs were likely to succeed in making that showing.

Irreparable harm. Moreover, despite USCIS efforts to downplay the impact of removal—suggesting that in reality, individuals in the employee’s predicament aren’t likely to be placed in removal proceedings while their appeal was pending—the court found this empty promise to be cold comfort for the employee. If faced with removal proceedings, he would suffer “a disruption to his life that could never be remedied” absent injunctive relief, “even if he were ultimately permitted to return to the United States after prevailing in this case. The harm is thus ‘beyond remediation.’”

Injunctive relief granted. The court granted the motion for preliminary injunction, staying the effectiveness of the USCIS decision denying the H-1B petition in this case until 30 days after the AAO has decided the appeal at hand. The court’s order applies retroactively to the date of the employee’s lost lawful immigration status. “It bears emphasis, however, that the relief granted is narrow,” the court stressed, noting it was taking no position on the ultimate merits of the H-1B petition. Rather, it solely found here that the agency’s stated reasoning for denying the petition didn’t satisfy the APA’s requirements.

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