On May 20, U.S. Citizenship & Immigration Services (USCIS) entered into an agreement with the information technology trade group ITServe Alliance Inc. to overturn more than 200 H-1B denials. The move comes after a federal court ruled in March that USCIS policies narrowly defining employer-employee relationships, as well as other regulatory requirements for H-1B classification, were implemented outside of proper notice and comment rulemaking. The agreement provides further evidence that litigation is now a critical tool for combating restrictive USCIS policies and adjudications.

In recent years, USCIS has increasingly challenged employers seeking H-1B classification for highly skilled workers in specialty occupation positions, i.e,. jobs that normally require at least a bachelor’s degree in a related field. The H-1B petition must be supported by a labor condition application (LCA) in which the employer confirms the wages and working conditions of the H-1B worker will not adversely affect U.S. workers. The H-1B visa is widely relied upon by companies in a variety of critical industries, including employers of technology, pharmaceutical, health care and university professionals. Although USCIS has increasingly scrutinized many facets of the H-1B program, a major area of focus has been on consulting firms that place H-1B workers at third-party worksites.

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