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Rise in Denials of H-1B Visas Results in More Litigation, Instability, Report States

It is no secret that H-1B visa denial rates have been on the rise over the last two years. Recent reporting sheds light on the litigation ensuing from those denials and the impact of denials on H-1B beneficiaries.

Sinduja Rangarajan is a senior data journalist at Mother Jones, a publication that focuses on investigative reporting, among other areas. She was formerly a data reporter at Reveal, a Center for Investigative Reporting. She has explored H-1B denials and developed a database that exposes “the unprecedented [number of] legal challenges” to the Trump Administration policies that have led to those denials as well as the results of those litigations.

Ms. Rangarajan’s data shows that before President Donald Trump took office, fewer than 10 cases were filed a year in federal court against USCIS challenging H-1B denials and alleging the agency’s violations of the Administrative Procedures Act (APA). Now, there are more than 60 year – her charts show nearly a straight line up since 2017. The cases “allege that the agency has been making inconsistent and incorrect decisions, ignoring evidence, and misapplying the law.” Many of the cases filed result in H-1B approvals before the litigation moves forward. She documents 38 of 97 during the 2017-2019 period.

But more than the data, her stories on Reveal focus on the lives of highly-skilled immigrants who have “given their youth to this country” and built lives here only to be thrown into chaos by denials or having to live in limbo due to the uncertainty regarding H-1B renewals.  President Trump has complained that companies are moving out of the United States because we “discriminate against genius[es]” and make it too hard for companies to bring the talent they need to this country permanently. While not everyone on an H-1B visa falls into the “genius” category, there is overlap. Yet, USCIS has instituted policies that yield denials seemingly indiscriminately — suddenly questioning the credentials of foreign nationals who have been working in highly technical positions for years and giving no deference to prior approvals.

Ms. Rangarajan herself is concerned about the precipitous rise in H-1B denial rates and resulting instability. She describes how she and her husband spend their evenings trying to figure out how to emigrate to Canada. She also tells the story of an H-1B worker in Texas who, after years of hard work in the United States, bought his dream house and then, due to an unexpected H-1B denial, he lost his job and had to sell his home. He managed to find similar job and got an H-1B approval – but it was too late for him. He has already lost at least a part of his American dream.

The Trump Administration is continuing to make it more difficult for companies to obtain H-1B visas – planning to issue regulations that will make it harder to challenge denials under the APA.  In the meantime, other countries, such as Canada, are taking advantage of the H-1B chaos and welcoming highly-skilled workers — like Ms. Rangarajan.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 351


About this Author

Forrest G. Read IV, Immigration, Employment, Attorney, Jackson Lewis, Law Firm

Forrest Read is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has special expertise in legal issues in graduate medical education (GME).

Mr. Read's immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and...