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ITServe v. Neilsen
In 2018 the Department of Homeland Security published a new rule prohibiting third party placement for F-1 students on OPT/CPT. However, they did not go through the required “notice and comment process.” Wasden Law filed a lawsuit and preliminary injunction were filed challenging the legality of the new rule. The day before the government had to defend its actions in court DHS agreed to delete the unlawful rule.
ITServe v. Cissna
In 2018 the Trump administration created a new mandatory requirement that H-1B employers engaged in third party placement to prove the existence of guaranteed specific work projects for the duration of the requested visa validity period. USCIS also required a complete itinerary for the employee’s full stay in the United States (up to three years). The agency also reaffirmed its employer-employee relationship test (aka “Neufeld Memo”) for each visa. Using these rules USCIS would shorten approvals to coincide with evidence of projects. After the implementation of these rules, approvals of H-1B visas went from an historic average in the high 90% range to the low 30% range. Wasden Law filed a lawsuit challenging: the legality of the employer-employee relationship test; the requirement to provide an itinerary; and, the requirement to prove the existence of projects at the of filing. In a now famous court decision, the court ruled that all three requirements violated the plain language of the statute and regulations. The government entered a settlement agreement following the court decision disavowing the rules. Approval rates of H-1Bs went back to the 90% range.
Eddakuni v. Mayorkas
in 2019 the Trump administration unsuccessfully attempted to use the legal process to remove the regulation allowing H-4 EADs. They then created a biometric requirement of all Form I-539 applicants. Processing times of H-4 and L-2 extensions and EADs went from days to over a year. Wasden Law filed a prelimary injunction motion challenging the legality of the biometric requirement and the lengthy delays in adjudication. Almost immediately USCIS withdrew the biometric requirement. Litigation continued on the delay claim (“mandamus”). USCIS ultimately settled the case, agreeing to concurrently process the primary visa petition with the H-4/L-2 extension and EAD. This was a full return to the process in existence prior to 2019.
Shergill v. Mayorkas
As part of the fight for H-4 and L-2 employment authorization Wasden Law filed suit alleging USCIS violated the statute by not giving L-2s employment authorization “incident to status.” Wasden Law also argued that USCIS was violating their own regulation regarding automatic EAD extensions as it relates to H-4s. USCIS realized it was in the wrong and settled the case in record time. As a result, L-2s and E-2s no longer have to apply for EADs. H-4s are eligible for auto extension of their EAD for up to 180 days in certain situations.