Lawyers May Get Some Answers to Visa Process

(CN) - The Department of Homeland Security must explain why it has withheld certain information from immigration lawyers who are trying to understand new restrictions on the H-1B visa process for specialty occupations, a federal judge ruled.

Temporary foreign workers use H-1B visas to serve in occupations that require theoretical or technical expertise in specialized fields, such as science, engineering and computer programming.

But the American Immigration Lawyers Association says that DHS starting more strictly regulating the H-1B visa process for specialty occupations, refusing and revoking far more applications, and scheduling 25,000 worksite inspections in 2010.

Amid the "heightened scrutiny," DHS provided a "near vacuum of publicly available information" on how workers can comply, according to a federal complaint filed by the lawyers group, which purports to represent more than 11,000 attorneys and law professors who practice and teach immigration law.

Though the U.S. Citizenship and Immigration Services refused the group's calls to see a "Compliance Review Worksheet" in 2009, the lawsuit prompted it to release a redacted version. It also released a redacted version of a four-page memorandum by Donald Neufeld, acting associate director of domestic operations, regarding H-1B fraud initiatives, and a two-page preprinted USCIS form titled "H-1B Petition Fraud Referral Sheet."

It attributed the redactions to FOIA exemption 7(e), which protects records that might compromise law enforcement investigations or prosecutions, but the lawyers group claimed that the three redacted documents do not qualify because they contain publicly available information.

U.S. District Judge Emmet Sullivan agreed that the government properly invoked the exemption, but he did not approve of the accompanying Vaughn indexes, which take their name from the 1973 case Vaughn v. Rosen.

Vaughn indexes must identify each document withheld, state the statutory exemption claimed, and explain how disclosure would damage the interests protected by the claimed exemption.

The accompanying description does not, however, explain how the redacted information differs from information that the defendants have chosen to publicly disclose," Sullivan wrote. "As explained above, the court finds that USCIS is required to specifically explain the difference between what it has deemed appropriate for public disclosure and what remains withheld, in light of the existence of the publicly-disclosed BFCA Report and the Compliance Review Report Instructions. Specifically, for any documents that relate to the subject matter discussed in the BFCA Report and the Compliance Review Report Instructions, defendants must specify how the information redacted differs from what has been officially disclosed."

Revised Vaughn indexes are due by April 30, and the parties must file a joint recommendation to resolve the case by May 31, according to the court.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit