Immigration Litigation to Protect Immigrant Rights

In response to new, tougher immigration regulations several groups are suing the administration to block these new obstacles. We are monitoring two cases that stand to test the Trump Administration’s ability to alter the immigration system without Congressional approval.

Colleges Sue to Protect Students

Guilford College v. Nielsen concerns new challenges for F, J, and M visa holders instituted in the late summer. The administration has given itself the ability to retroactively find foreign nationals on student visas as out of status. Instead of beginning the accrual of unlawful status the day it is determined a student has fallen out of status, the government can backdate the beginning of this accrual. This puts foreign students at risk of being barred from the United States if they mistakenly put themselves out of status and are unable to rectify their situations until after they are made aware of the status violations. It is possible under this new system for students to be found to have violated their status long enough in the past such that they are eligible for being barred from the United States immediately upon their discovery of their violation.

Four U.S. universities have said these policies have done harm by causing fear for international students as they consider taking their studies elsewhere. Two universities that have filed suit, Haverford College and The New School, have specifically said that the new rule is making it more difficult to retain students, and some have left because of the new policy. In addition to this, the universities are questioning the legality of the method used to institute the policy, in that it lacked a public “notice and comment period.”

Companies Sue for Fairer H-1B Standards

Since fall 2017, H-1B petitioners have noticed a trend in USCIS adjudications of these petitions towards stricter review and an increased frequency of Requests for Evidence (RFEs). In response, several affected companies have formed an advocacy group called ITServe that has filed suit against USCIS over these practices. Among other demands, the group is specifically suing to compel USCIS to cease the practice of providing approval periods for far less than requested. The group claims that this practice and others cause difficulty and unpredictability for thousands or employers. In the suit, ITServe claims USCIS is overinterpreting its ability to withhold immigration benefits from applicants and requires more evidence than its mandate allows.

No Other Choice

Over the past year, the issuance of RFEs (which require the petitioning employer to submit additional evidence that the beneficiary is qualified for the program they are applying for or face denial), increased by three times to the point of affecting 70% of cases. RFEs can more than double the amount of effort required on the part of the employer to obtain approval and often require advanced legal support. The spike in RFEs have led to the issuance of denials increasing by 50%. In an even greater departure from the norm, USICS has also given itself the ability to deny cases outright, completely bypassing the RFE stage.

As a result of these trends, ITServe and similar groups feel that directly appealing to administrators and immigration officers will not result in relief from these policies and that challenging harmful adjudications is the most effective way to change government behavior.

While the cases ITServe and Guilford Et. Al. are pursuing remain pending, our firm will continue to support petitioners Contact us today for a review of your case to protect your rights and interests in interactions with USCIS or other immigration authorities.

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