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By: Ken Levine
For the past two years, USCIS has ramped up revocations of approved H-1B petitions. While there are no reliable government statistics, word of mouth in the immigration legal field, as well as increased federal litigation concerning H-1B revocations, clearly underscores the existence of this trend.
Under 8 C.F.R. 214.2(h)(11) USCIS must satisfy at least one of the below criteria in order to initiate H-1B revocation proceedings:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or (2) The statement of facts contained in the petition was not true and correct; or (3) The petitioner violated terms and conditions of the approved petition; or (4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or (5) The approval of the petition violated paragraph (h) of this section or involved gross error.
In particular, USCIS has taken to stretching the bounds of “gross error” criteria to justify revocation of petitions for occupations that USCIS now believes do not merit recognition as a specialty occupation. An example of this approach can be found in the Service’s increased attempts to revoke approved H-1B petitions for Systems Analyst or Market Research Analyst positions.
As well, USCIS has substantially increased scrutiny on H-1B workers in the information technology field. Employers in the IT field must be especially diligent in filing amendments when there are changes to the terms of the position or location of employment. Even minor position changes that come to light through a USCIS audit can easily trigger an H-1B revocation notice.
DOES AN EMPLOYER HAVE ANY DEFENSES TO AN H-1B REVOCATION?
The regulations allow for an employer one opportunity to rebut the basis of a USCIS revocation. USCIS must send a summary outlining the specific reasons why revocation has been initiated. Employers are then given 30 days to file a response. If the response is deemed persuasive then USCIS will uphold the validity of the approval. Otherwise, USCIS will formally revoke the petition.
However, just because a petition has been revoked does not mean the matter must end there. Employers who believe that the Service’s decision to revoke their H-1B petition was unwarranted should strongly consider challenging the revocation in Federal Court. Federal Judges are reluctant to afford deference to USCIS decisions if those decisions are not logical, rational or well founded.
For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].