Court-Ordered Sanctions Against USCIS Could Affect H-1B Visas

A pending lawsuit in the U.S. District Court of Guam concerns USCIS processing of H-2B visa petitions but carries implications for H-1B visa petitions, as well. Guam suffers from a shortage of skilled laborers due to its remote location. Traditionally, the approval rate for H-2B visa petitions was close to 100%. This meant that thousands of foreign workers arrived in Guam to work in the hotel, health care, and construction industries. In 2012, however, USCIS began denying most H-2B visa petitions, dropping the approval rate for these visa petitions to almost 0%. USCIS started to take the position that the jobs were not “temporary,” since Guam has become so reliant on the foreign workers in these industries. The approval rate has remained at about 0% every year since 2012.

Court-Ordered Sanctions Against USCIS Could Affect H-1B Visas

As a result, the Guam Contractors Association and several businesses filed a lawsuit arguing that the USCIS had changed the eligibility rules without notice and in violation of the Administrative Procedure Act (APA). The plaintiffs sought and received an injunction preventing USCIS from continuing to deny H-2V visa petitions exclusively based on temporary need. However, USCIS has continued its recent practice of denying almost all H-2B visa petitions.

Due to alleged injunction violations, the plaintiffs now have filed a motion for contempt and sought sanctions against USCIS. A U.S. Magistrate handling the case has recommended that the court granted the motion and order sanctions. Federal courts rarely find the federal government agencies in contempt of court and imposing sanctions is even rarer.

The decision to impose sanctions, in this case, could have wider ramifications, as it deals with USCIS changing its standard of adjudication. Businesses and immigration lawyers have criticized USCIS for abruptly denying or delaying H-1B visa petitions to request more information at a suddenly high rate as compared to the rate of past denials. This trend has caused the approval rate of H-1B visa petitions to drop precipitously in the last two years. At Peek & Toland, we care about helping you through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration case by sitting down with us today and discussing your situation.

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