WASHINGTON (CN) – A federal judge slammed the government Thursday over holes in its explanation about the discrepancy in visa denials for skilled foreign workers under the Trump administration.
In 2018, the number of denials for IT consulting companies spiked as high as 40 percent, compared to the 1% denial rate for tech giants like Google, Amazon and Microsoft.
A flurry of litigation ensued, with multiple companies blaming the shift on a policy crafted by U.S. Citizenship and Immigration Services.
As noted in a complaint by trade association ITServe Alliance, which serves as the lead case for consolidated litigation, the agency promulgated a memo in February 2018 that required IT consulting firms to specify all third-party work assignments for H-1B visa holders, giving the agency authority to reduce a visa’s duration and allowing it to redefine which firms constitute employers under the program.
Jonathan Wasden, an attorney for the alliance, said in court Thursday that such authority rests with the Department of Labor.
“This is not what Congress intended,” Wasden said during a two-hour hearing Thursday in Washington.
Government attorney Aaron Goldsmith meanwhile argued that the 2018 policy memo simply directs visa adjudicators to properly apply already existing law.
Because the policy is interpretive and does not constitute a new regulation or final agency action, Goldsmith said the court can’t review it.
U.S. District Judge Rosemary Collyer saw merit in that argument but asked how she could determine that, since no administrative record about the policy exists.
Appointed to the bench by former President George W. Bush, Collyer floated the possibility of ordering discovery to make that determination.
“The plaintiffs say this is an attack on their industry,” Collyer said.
Indeed in its motion for summary judgment, ITServe Alliance accused the government of “trying to end the information technology consulting business model.”
While Collyer didn’t delve into that question Thursday, she raised the possibility that the USCIS policy is tied to the administration’s hard-line immigration stance, and its efforts to keep certain groups out of the country.
“How am I not supposed to think that,” Collyer asked.
Critics of the H-1B visa program say some tech employers have abused it by replacing American workers with foreign workers they can pay less, and view the shift as a welcome crackdown on that abuse.
Giving voice to that concern, attorney Goldsmith said H-1B employers can use third-party work sites to override Congressional intent, and enable visa beneficiaries to look for other work once here.
“It’s just being used as a ruse to bring people into the country,” Goldsmith said.
The H-1B visa program was created in 1990 to accommodate workers with highly specialized knowledge. Visas last for three years but can be extended to six before the visa holder needs to reapply.
Goldsmith said the appropriate course of action for firms displeased with the outcome of their H-1B visa applications is to litigate them individually.
That suggestion drew a sharp response from Collyer.
“You had better come up with something better than that,” she said.
Though not a question formally before the court Thursday, Collyer pressed Goldsmith to explain why H-1B adjudications are taking much longer now. Whereas they once took about 30 days, they can take upward of an entire year now for IT consulting firms.
“I don’t have the answer to that question,” Goldsmith said.
On that point, Collyer ordered the attorney to submit more information to the court.
“This is very troubling,” Collyer said.
The judge was careful to note that the plaintiffs in the consolidated cases might lose. But she stressed the importance of understanding the facts behind the 2018 policy, including who wrote it, why was it issued, and whether it came directly from the agency.
“It would appear to be part and parcel of a lot of other things,” Collyer said.
In a post-hearing interview outside court, attorney Wasden said USCIS has long faced internal tension over the H-1B visa program.
“The people who wanted to be more aggressive and penalize H-1B users were promoted under the current administration to levels of authority that they previously did not have,” said Wasden, who used to work at the agency. “So that’s where it’s coming from.”
Wasden said he sat in on meetings while at the agency where the changes to the program at issue today were discussed but rejected.
Back in the courtroom he said the practical effect of USCIS policy is a stifling of IT consulting firms.
“It denies business reality,” said Wasden, who is based in Burke, Virginia.
He added that the policy has “injected massive amounts of uncertainty” into the system.
Exacerbating that problem, the 2018 policy allows USCIS to limit the duration of H-1B visas when IT consulting firms can’t specify third-party work assignments for three years.
But such companies often can’t specify what work an H-1B visa holder will be doing months or years into their visa stay.
As noted by ITServe Alliance media director Deepali Khadakban, that wasn’t an issue when USCIS regularly approved H-1B visas in three-year increments.
“We can’t give them the exact itineraries all the time because we are growing businesses,” Khadakban said.
During the hearing, attorney Wasden noted that the Immigration Act of 1990, which the H-1B visa program derives from, anticipated and allowed for times when workers have nothing to do.
Khadakban meanwhile said the policy could be driving companies out of the United States.
“If I’m not able to procure the people here I’m going to go outside,” she said.
Unlike Wasden, Khadakban expressed less certainty about why IT consulting companies are being singled out under the policy.
“It is not fair,” she said. “That’s why we are fighting.”
USCIS spokesman Dan Hetlage declined to comment after the hearing, citing a policy on ongoing litigation.