A judge's recommendation for sanctions against USCIS in an H-2B visa case carries implications for employer lawsuits on H-1B visas.
stems from denials for H-2B petitions that started years ago. Due to its remote location, Guam has difficulty finding skilled labor in health care, hotels and construction. “In some years, that meant as many as 3,000 workers were brought in and the approval rate on such petitions was close to 100% for decades,” said Joseph. “Inexplicably, in 2012, USCIS began denying H-2B applications in Guam and the approval rate went from close to 100% to close to 0% and has continued at that rate since 2012.
Joseph and the plaintiffs questioned the logic used by USCIS in the denials. “The reasoning of USCIS is that the employers have come to rely on H-2B workers as a permanent part of their workforce and, as a result, can no longer claim that the jobs are temporary in nature,” said Joseph.
Similar to cases against USCIS on H-1B petitions for high-skilled professionals, the certified class has argued that USCIS changed the rules without notice and comment in violation of the Administrative Procedure Act . “We have asked the court to find that USCIS’ new position on temporary need constitutes a legislative rule that binds all petitioners going forward and should have gone through the notice and comment procedures,” said Joseph.
Jonathan Wasden, litigation director of Economic Immigration Support Services, believes the case may have wider implications, particularly on H-1B cases, since the H-2B lawsuit hinges on USCIS changing its standard of adjudication. That is also an important issue in
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