Visa revoked due to employer fraud? H-1B holders can now take legal action
A US district court has ruled in favor of H-1B visa holders, affirming their right to legal action if their visa is revoked due to employer fraud via multiple filings. Ten Indian citizens filed the lawsuit after their visas were cancelled for simi...
By ET Online |
iStock
A district court in the United States has ruled that H-1B visa holders have the right to take legal action if their visa is revoked because their employer committed fraud through multiple filings, as reported by TOI.
The lawsuit was filed by ten Indian citizens whose H-1B visas were cancelled due to allegations of fraud or misrepresentation on account of multiple filings by their employers.
In their lawsuit, these individuals submitted that US Citizenship and Immigration Services (USCIS) violated procedural requirements by sending a ‘Notice of Intention to Revoke (NOIR) only to their employers and not giving them an opportunity to raise arguments or present facts regarding their visa revocation.
“This is an unprecedented ruling recognizing that beneficiaries of H-1B visas have a right to claim that USCIS must provide notice to them before revoking an H-1B visa,” Jesse Bless, the immigration attorney who represented the plaintiffs told TOI.
"In the lawsuit two things were sought by the H-1B visa holders. The first was removal of any finding of fraud or misrepresentation against them and second restoration of the cap number. The government conceded to the first point and the judge has denied the government’s attempt to dismiss the second point," he said.
Jonathan Wasden, immigration attorney, who also represented the plaintiffs added, "It is an incredible win in court for H-1B workers!"
If there are multiple H-1B cap registrations for the same individual, and sponsoring companies are collaborating to enhance the likelihood of these individuals winning the lottery, USCIS views this as inappropriate. In such cases, pending applications are denied, and already approved ones are revoked.
Wasden pointed out that the Administrative Procedure Act was not followed as the ‘anti-collusion’ rule was not published prior to enforcement.
Assignment of a cap-number once selected in the lottery is a benefit the law grants to the employee – thus the employee is an ‘interested party’ entitled to be served a notice and given an opportunity to respond to adverse action by the USCIS.
Finally, the only legal provision allowing for revocation for fraud is when the foreign national employee makes a knowingly false statement.
“In each of these cases the employee was not allowed to communicate with the agency about any aspect of the petition. From our reading of the law it does not appear that the statute allows revocation of a cap number based on fraud of a third party,” explains Wasden.
Beginning with the most recent filing season for H-1B cap visas for fiscal year 2025, every beneficiary will be included in the lottery only once, using their passport or travel document number. This ensures that each beneficiary has an equal opportunity in the lottery, irrespective of the number of registrations submitted on their behalf. This new procedure aims to prevent manipulation of the system through multiple filings.
Your sponsor can be your current or a new employer, as long as they're willing to support your application.
(With TOI inputs)
The lawsuit was filed by ten Indian citizens whose H-1B visas were cancelled due to allegations of fraud or misrepresentation on account of multiple filings by their employers.
In their lawsuit, these individuals submitted that US Citizenship and Immigration Services (USCIS) violated procedural requirements by sending a ‘Notice of Intention to Revoke (NOIR) only to their employers and not giving them an opportunity to raise arguments or present facts regarding their visa revocation.
“This is an unprecedented ruling recognizing that beneficiaries of H-1B visas have a right to claim that USCIS must provide notice to them before revoking an H-1B visa,” Jesse Bless, the immigration attorney who represented the plaintiffs told TOI.
"In the lawsuit two things were sought by the H-1B visa holders. The first was removal of any finding of fraud or misrepresentation against them and second restoration of the cap number. The government conceded to the first point and the judge has denied the government’s attempt to dismiss the second point," he said.
Jonathan Wasden, immigration attorney, who also represented the plaintiffs added, "It is an incredible win in court for H-1B workers!"
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If there are multiple H-1B cap registrations for the same individual, and sponsoring companies are collaborating to enhance the likelihood of these individuals winning the lottery, USCIS views this as inappropriate. In such cases, pending applications are denied, and already approved ones are revoked.
Wasden pointed out that the Administrative Procedure Act was not followed as the ‘anti-collusion’ rule was not published prior to enforcement.
Assignment of a cap-number once selected in the lottery is a benefit the law grants to the employee – thus the employee is an ‘interested party’ entitled to be served a notice and given an opportunity to respond to adverse action by the USCIS.
Finally, the only legal provision allowing for revocation for fraud is when the foreign national employee makes a knowingly false statement.
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“In each of these cases the employee was not allowed to communicate with the agency about any aspect of the petition. From our reading of the law it does not appear that the statute allows revocation of a cap number based on fraud of a third party,” explains Wasden.
Beginning with the most recent filing season for H-1B cap visas for fiscal year 2025, every beneficiary will be included in the lottery only once, using their passport or travel document number. This ensures that each beneficiary has an equal opportunity in the lottery, irrespective of the number of registrations submitted on their behalf. This new procedure aims to prevent manipulation of the system through multiple filings.
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To get an H-1B visa, you need a company to sponsor you. If you're already in the US on a student visa, ask your employer if they can sponsor your H-1B. Otherwise, consult an immigration lawyer about your options.
Your sponsor can be your current or a new employer, as long as they're willing to support your application.
(With TOI inputs)
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