“Illegal to deny work permit to Spouses of H-1B visa holders”

Four spouses of H-1B visa holding workers who are facing undue delays in getting their H-4 visa extension and work authorisation applications renewed have sued the Trump administration.  A petition filed on June 6 in a US district court points out that the intentional processing delay by the United States and Citizenship Immigration Services (USCIS), which adjudicates visa applications and extensions, has placed the plaintiffs (who filed the petition) and numerous other H-4 and H-4 EAD applicants in danger of losing their jobs, medical insurance (provided by the employer), and driver’s licences. The delay has strained the finances of the applicants and their families, and adversely impacted their employers, says the petition, demanding timely disposal of these applications.

Spouses of H-1B visa holders who are working in the US get a dependent (H-4) visa, the duration of which is coterminus with the tenure granted to the principal visa holder.  The H-4 visa itself does not enable the spouse to work or be self-employed. Only those spouses where the principal H-1B worker is on track for a green card (permanent residency) can obtain an employment authorization document (EAD), which is the work permit.

USCIS taking up to 8.5 months to process H-4 visa applications

The EAD also enables the spouse to obtain a social security number and thus operate a bank account or obtain a driver’s license. Emily Neumann, partner at immigration law firm Reddy & Neumann (the firm representing the plaintiffs), told TOI: “We have argued that it takes USCIS adjudicators an average of merely 24 minutes to process Form I-539 (application to extend non-immigration status) and 12 minutes to process Form I-765 (application for employment authorization), yet it takes USCIS up to 8.5 months to adjudicate these applications according to current processing times.”

Both the H-4 extension and H-4 EAD are immigrant benefits that the US Congress expects the USCIS to complete within 30 days. The petition filed in the court (a copy of which is with TOI) explains that unlike H-1B, which allows the visa holder to work for a certain grace period while the extension is pending approval, no such rule exists for H-4 EAD holders. This creates a significant need for the applications to be dealt with in a timely and expeditious manner.

An H-4 EAD application cannot be approved without a valid H-4. As of May 2019, USCIS processing times for an H-4 application were as long as eight and a half months. Processing times for H-4 EAD is approximately 5 months currently, the petition adds.

“In many cases, while the H-1B extensions have been granted, the H-4 spouses continue to wait, losing out on jobs, medical insurance, and driver’s licences because they did not receive their EADs in time,” adds Neumann.

“The Trump administration has expressed its intention to revoke the EAD program. Meanwhile, it appears that the administration is building invisible blocks by delaying processing of our applications,” says an individual who is currently waiting for her H-4 extension and EAD renewal.

It is reminding me of camel who sought permission for small portion in tent to protect its neck from outside cold and ultimately kicked off the owner of tent from tent all together.Revocations of H-1B Visas Rise in New Front Against Immigration Comtrix Solutions Inc., a Virginia-based health care staffing company, got approval to bring in skilled foreign workers on H-1B visas for several clients in October 2018, six months after it applied.

But by that time, the original clients had moved on because they couldn’t wait that long for workers whose appearance wasn’t even guaranteed. When the government caught wind of the change, it accused Comtrix of lying about where the workers would be placed and revoked the H-1B petitions on the grounds of fraud.

Immigration attorneys say such revocations, along with denying extensions of H-1Bs that used to be granted routinely, are the latest in a series of steps by U.S. Citizenship and Immigration Services to crack down on the specialty occupation visa heavily used by tech companies. In April, employers submitted 201,011 petitions for 85,000 H-1B visas available starting in October.

“There’s no question that there are cases, H-1B petitions, that have been approvable for the last 20 years that aren’t approvable today,” said H. Ronald Klasko of Klasko Immigration Law Partners in Philadelphia. “The law hasn’t changed, just their standards.”

There are no publicly available records on how often H-1Bs are revoked.  But “revocations are now starting to be as common as denials,” which shot up to a total of 15.5% of all petitions decided in fiscal year 2018 from 7.4 percent the prior year, said Bradley Banias of Barnwell Whaley Patterson & Helms in Charleston, S.C.

The USCIS’ implementation of President Donald Trump‘s Buy American and Hire American executive order, released in April 2017, has resulted in a high level of H-1B scrutiny, with longer processing times and more denials for businesses, especially the information technology consulting industry. The industry has been flagged in the past for displacing U.S.-born tech workers.

Jonathan Wasden of Economic Immigration Support Services in Reston, Va., who’s filed a lawsuit on Comtrix’s behalf, accused USCIS of targeting staffing companies.

“They’re trying to prohibit the consulting industry from using the H-1B,” said Wasden, who recently joined the immigration firm Reddy & Newman as counsel for litigation. “It’s no accident that the delays” in H-1B processing last year “were really targeted toward the consulting industry,” he said.

The authority to revoke H-1B petitions comes from the Department of Homeland Security regulations, agency spokesman Philip Smith said.

He said the USCIS may send a notice of intent to revoke if the worker is no longer working for the petitioning employer in the capacity listed in the original petition; there was fraud, misrepresentation, or the facts originally presented weren’t true; the employer violated the terms and conditions of the approved petition or the law; or the approval violated the regulations or “involved gross error.”

Separately, the agency said it “does not believe that recent policy changes have led to a purported increase in H-1B revocations.”

“H-1B revocations are based on 8 CFR 214.2(h)(11), and that regulatory provision, including the interpretation of that provision, remains unchanged,” an agency official said. “There are no pending policy changes for H-1B revocations.”

Immigration lawyers, however, point to two causes of the crackdown: an October 2017 USCIS memo overturning a George W. Bush administration policy that said adjudicators deciding H-1B extension applications generally should defer to decisions on the prior applications; and a February 2018 policy requiring employers that place their H-1B workers at third-party sites to provide additional documentation over and above what other employers must submit.

The 2018 policy requires employers to list every contract and work site the H-1B worker will be working on for the duration of the visa, a requirement that Banias and Wasden are suing over.

“They get away with it if no one challenges it in court,” Klasko said of the revocations. A challenge to the practice, as opposed to a lawsuit over a one-time revocation, “could be a good case to litigate,” he said.

Klasko, who heads an American Immigration Lawyers Association task force devoted to litigating business immigration issues, said he and others on the task force are considering whether to file such a broad challenge.

“They can’t just revoke” an H-1B because the current administration wouldn’t have approved a petition approved by a prior administration, he said. Rather, revocation requires that there was “clear error” in the original approval, he said.

Revocation creates an additional headache over and above delays and denials: the need to “get that person out of the country quickly” to avoid penalties for being in the U.S. unlawfully, Banias said. H-1B workers have 30 days to exit the U.S. after receiving a revocation notice.

It also means that, rather than simply reapplying for another H-1B visa, the worker’s application has to go through the H-1B lottery a second time, and may not get selected, he said.