On March 11, 2021, the American Immigration Council (the Council) and partners filed a lawsuit, on behalf of seven U.S. employers whose H-1B petitions had been unlawfully rejected, challenging USCIS’s arbitrary and capricious refusal to accept timely and properly filed H-1B cap-subject petitions. (Acquia Inc., et al., v. USCIS, 3/11/2021). USCIS arbitrarily rejected the Plaintiffs’ H-1B petitions filed after October 1, 2020, solely because the H-1B workers’ intended employment start date fell after October 1, 2020.

On April 29, 2021, the seven U.S. employers voluntarily dismissed the lawsuit against USCIS after the agency agreed to accept and adjudicate the Plaintiffs’ H-1B petitions that had previously been rejected by the agency. Please note that this settlement only applies to the specific Plaintiffs named in the lawsuit.

In light of this outcome, AILA has contacted DHS to see if USCIS would be willing, as a matter of policy, to accept back H-1B cap-subject petitions from all other similarly situated U.S. employers (i.e., U.S. employers who filed an H-1B cap-subject petition with USCIS after October 1, 2020, and the agency rejected the petition solely because the H-1B worker’s intended employment start date fell after October 1, 2020).

While waiting for a response from USCIS, you could consider the following options for employer clients who have been impacted by H-1B cap-subject petition rejections or denials for failure to list an October 1, 2020, start date:

• File a lawsuit in Federal Court. Practitioners should discuss with their impacted client the option of filing a lawsuit in federal court.
• Attempt to refile the previously rejected H-1B cap-subject petition with USCIS. Although AILA has not yet received a response from USCIS regarding whether the agency would be willing, as a matter of policy, to accept back H-1B cap-subject petitions from all other similarly situated U.S. employers, practitioners may wish to discuss with their client the option of attempting to proactively refile the previously rejected H-1B cap-subject petition with USCIS rather than waiting for a response.
• Await further guidance from USCIS before refiling a previously rejected H-1B cap-subject petition. Wait and see if USCIS, in light of the lawsuit, issues any further updates or guidance.

Attorney Jing Feng is a decorated immigration lawyer who has been working in immigration for years. She has notable experience in this domain, and has successfully gained U.S. residency for thousands of her clients. For more consultation on visa preparation, please contact Jing Feng Law Group, PLLC at jfeng@fengvisa.com or 646-288-7129. We look forward to hearing from you!