Worker’s Loss Could Open Door for More H-1B Revocation Cases
Worker’s Loss Could Open Door for More H-1B Revocation Cases
February 11, 2020
Laura D. Francis
An Indian software engineer’s failure to convince a federal judge that his H-1B visa was wrongly revoked could wind up helping other, similar challenges.
U.S. Citizenship and Immigration Services properly revoked Venkata Parcha’s H-1B specialty occupation visa in light of fraud perpetrated by his former employer, Judge Sean D. Jordan of the U.S. District Court for the Eastern District of Texas ruled.
But the case will help pave the way for more H-1B revocation lawsuits, Bradley Banias of Wasden Banias in Mount Pleasant, S.C., said. By finding that courts have authority to review the USCIS’ revocation decisions, Jordan eliminated one of the main arguments the agency typically uses when faced with such cases, he said.
“It definitely opens the door to additional federal court litigation on revocations,” said Banias, who represents Parcha.
H-1B visas, reserved for “specialty occupations” that usually require a bachelor’s degree, have been a target of Trump administration scrutiny for the past three years.
In addition to adopting new policies, the administration has started revokingpreviously granted H-1B visas not just for fraud, but also because of disagreement with the standards applied by prior administrations.
The practice has potentially wide-ranging implications considering the large number of primarily Indian and Chinese workers who must continually extend their H-1B visas while waiting years for green cards to become available. The green card backlog is partly the result of overall green card caps combined with caps based on the worker’s country of origin.
Not Discretionary
Jordan, nominated by President Donald Trump and confirmed by the Senate last year, ruled Feb. 7 that H-1B visa holders—and not just employers that file petitions for the visas—can sue the USCIS when those visas are revoked. He also said the agency’s decision to revoke isn’t discretionary, and therefore can be reviewed by the courts.
The argument that a visa decision is completely within the agency’s discretion, and therefore can’t be the subject of a lawsuit, is “the first line of defense for the government,” Banias said. Because there have been so few H-1B revocation cases, “that’s a huge part of the decision that will come into play,” he said.
The USCIS doesn’t comment on pending litigation as a matter of practice, a spokeswoman said.
Parcha ultimately lost his case because his former company’s owner, Raju Kosuri, pleaded guilty to visa fraud and admitted in a sworn statement that all the H-1B petitions he filed between 2010 and 2016 were fraudulent. That was a sufficient reason for the USCIS to revoke the visa, and the agency didn’t wait too long to do so, Jordan ruled.
The decision means Pacha will likely have to leave the U.S. with his wife and children, Banias said. But that’s not the end of his story.
Pacha is also a party to a separate lawsuitthat Banias filed in federal district court in South Carolina challenging several H-1B revocations that stemmed from the same visa fraud.
One of the underlying issues already has been resolved: whether the USCIS had to provide notice of its intent to revoke the visas and an opportunity to respond to the visa holders themselves and not just the company that filed the petitions. The court in that case didn’t rule on the issue because the USCIS voluntarily provided the notice to the visa holders, Banias said.
But there’s still the issue of whether the visa holders, who weren’t in on the fraud, should be stripped of their ability to live and work in the U.S. as a result, he said.
The case is Parcha v. Cuccinelli, 2020 BL 46939, E.D. Tex., No. 4:20-cv-00015, 2/7/20.
https://news.bloomberglaw.com/daily-...vocation-cases
