In what comes as a surprise to many, lawsuits challenging processing delays, travel bans, and proposed changes in the H-1B work visa programme have marked the early months of the Biden administration.
“We didn’t think we would be as busy as we’ve been with the Biden administration, but that hasn’t proven to be the case,” said Greg Siskind, founding partner at immigration law firm Siskind, Susser PC. He said the new regime has chosen to carry on some Trump policies even if those “hurt immigrants”.
About half a dozen lawsuits have been filed – mostly class actions that include a large number of litigants in each – in the last three months.
“It seems like eventually the administration comes around, but that’s probably in response to the suits themselves,” Siskind said. “In some cases, we’re suing because the bureaucracy is not responding to a crisis, and litigation is the best way to force the issue.”
Last week, Saarika Bandaru, a resident of India filed a case following an inordinate delay in issuing her non-immigrant visa which had been approved in March 2020. After a second visa appointment in February 2021, the US Consulate in Hyderabad refuses to issue the visa or provide any information on when, if ever, the visa may be issued, says the filing.
Last month, a group of Indians joined a lawsuit challenging the travel ban into the US, which lawyers said is illegally being used as an excuse to not grant visas. The ban on Indians only applies if one has been in India in the last 14 days and going to another country for 14 days would solve the problem, they said.
There has also been a litigation challenging the proposal to change the H-1B lottery system from random to a wage-based – a proposal introduced by Trump. While Biden has delayed its implementation, he has not scrapped it as was expected.
“We filed a suit to challenge the rule under the Trump administration, but this litigation continues after the Biden administration and despite the fact that Attorney General (Merrick) Garland has the ability to voluntarily withdraw the proposed rule at any moment,” said Jeff Joseph, senior partner and director of corporate immigration and employer compliance at immigration law firm Joseph & Hall. “The rule has been delayed until November, it has not been withdrawn,” he said.
Going ahead, immigration lawyers are gearing up for still more litigations as delays in visa processing continue. Also, there are no signs of Trump’s immigration policies being abandoned, they said.
Joseph said the lawsuits will continue as the Democrats will attempt to bring in more changes to the H-1B programme. “The Democrats, while certainly more welcoming to immigrants than the last administration, have a long historical alliance with labour unions and are very protective of the US workforce,” he said. “The Democrats will advance an agenda and regulations that are more aligned with the interests of workers rather than employers.”
A lot of the litigation currently planned is on “mandamus” cases, which are about forcing the government to address extraordinarily long delays in processing.
Covid-led closures have resulted in a huge backlog, with about 500,000 cases waiting at the National Visa Centre to be sent to consulates for interview. Most of these impact non-immigrant visa processing.
Siskind is also working on a lawsuit challenging USCIS for accepting multiple applications for the recent H-1B lottery from a single individual. This gaming of the H-1B lottery hurts people and employers who followed the rules and want a fair chance at getting an H-1B number, he said.