Court invalidates key Trump Administration H-1B Visa Policies; employers can push back against of H1B denials, says Darius Amiri, chairman, Rose Law Group Immigration Dept.

Donald Trump signs the Buy American and Hire American executive order, which resulted in new restrictions on H-1B visas, in Kenosha, Wisconsin, on April 18, 2017./Getty Images

By Stuart Anderson | Forbes

In a stunning repudiation of Trump administration immigration policies, U.S. District Judge Rosemary M. Collyer invalidated the key U.S. Citizenship and Immigration Services (USCIS) memos and policies that have caused skyrocketing H-1B denial rates and harsher treatment for information technology (IT) services companies employing foreign-born computer professionals. The decision came in ITServe Alliance v. L. Francis Cissna. The judge’s ruling may significantly change how USCIS adjudicates H-1B cases for many companies.

During a May 9, 2019, court hearing, after listening to the arguments from both sides, Judge Collyer said to the Trump administration’s attorney: “You don’t want these people in this country.” By “these people” the judge meant foreign-born computer professionals. That was not the judge’s only pointed observation.

Late in the hearing, Judge Collyer asked the same government attorney about a USCIS memo that had contributed to a dramatic increase in H-1B denials for IT services companies: “If [the memo] is not changing things, why are the results so different?” she asked. The government attorney answered: “That’s a fair question.”

On March 10, 2020, Judge Collyer had the last word. She ruled the Trump administration could not use USCIS memos that had caused denial rates for new H-1B petitions to go from about 2% in FY 2015 to over 30% for many IT services companies, according to a National Foundation for American Policy analysis. The USCIS policies targeted IT services companies and other firms that supply business services, such as helping clients improve their digital platforms or become more competitive with cloud computing or new systems.

“In a blow to USCIS’ efforts to undermine the tech consulting industry, a federal judge has repudiated recent USCIS policy memos and guidelines which have contributed to an uptick in denials of H1B visas for IT services companies, among others.

“With this court ruling, employers will be able to push back against arbitrary denials of H1B petitions in the future.”

~ Darius Armiri

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