In Mumbai, a US district court has ruled that H-1B visa holders possess the right to pursue legal recourse if their visas are revoked due to employer fraud, such as through multiple filings.
Ten Indian citizens, whose H-1B visas were revoked due to employer-filed multiple petitions, filed a lawsuit. They argued that the US Citizenship and Immigration Services (USCIS) breached procedural requirements by sending a ‘Notice of Intention to Revoke’ (NOIR) solely to their employers, denying them the chance to contest or provide evidence regarding their visa revocation.
“In the legal action, H-1B visa holders pursued two objectives. Firstly, they sought the eradication of any allegations of fraud or misrepresentation against them. Secondly, they aimed for the reinstatement of the cap number. While the government conceded to the first demand, the judge rebuffed their effort to dismiss the second.”
Jonathan Wasden, an immigration attorney representing the plaintiffs, chimed in, stating, “This victory in court is monumental for H-1B workers!”
If multiple H-1B cap registrations are submitted for the same beneficiary by sponsoring companies collaborating to improve their chances in the lottery, USCIS deems it inappropriate. Any pending applications are denied, while previously approved ones are revoked.
Wasden highlighted that the Administrative Procedure Act was overlooked, as the ‘anti-collusion’ rule was not published prior to enforcement. The allocation of a cap number once selected in the lottery is a benefit granted by law to the employee, making them an ‘interested party’ entitled to receive notice and an opportunity to respond to adverse actions by USCIS. Additionally, the only legal clause allowing for revocation due to fraud is when the foreign national employee knowingly provides false information. In each case, the employee was deprived of the opportunity to engage with the agency concerning any aspect of the petition. Based on our interpretation of the law, it does not seem that the statute allows for the revocation of a cap number due to fraud by a third party,” explained Wasden.
Beginning with the most recent filing season for H-1B cap visas for fiscal year 2025, all beneficiaries will now be entered into the lottery only once, utilizing their passport or travel document number. This modification guarantees that every beneficiary receives an equal chance in the lottery, regardless of the quantity of registrations submitted on their behalf. The purpose of this new procedure is to prevent the manipulation of the system through multiple filings.
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