Lawsuit filed challenging arbitrary rejections of H-1B petitions for not having October 1st as the start date.

March 12, 2021
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A lawsuit has been filed on behalf of seven U.S. employers whose H-1B petitions have been unlawfully rejected, challenges U.S. Citizenship and Immigration Services’ (USCIS) arbitrary and capricious refusal to accept timely and properly filed H-1B petitions which are subject to the annual statutory cap on H-1B visa numbers allocated each year. USCIS arbitrarily rejected H-1B petitions filed after October 1 simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1. Based on this timeline, USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer had to misrepresent the intended employment start-date by “back-dating” the petition. USCIS has not rejected these petitions across the board—some with an employment start date after October 1 have been accepted without issue. There is no law, regulation or form instruction that require an employer to specify only an October 1 start date in the H-1B petition. The lawsuit was filed in the federal district court for the District of Massachusetts by the American Immigration Council, and the law firms Mintz Levin, Cohn, Ferris, Glovsky & Popeo, PC; Joseph & Hall, PC; Meyner and Landis LLP; Barnes & Thornburg LLP; and Driggs Immigration Law. [reported by AIC]

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