It’s no secret that USCIS is intentionally discouraging H1B employment by delaying adjudication. Right now the California Service center claims to be adjudicating cases in 12 months, which when you discount the normal misinformation, means its probably going to be at least 2 more months.
All of this for a case that Congress told USCIS should not take more than 30 days.
To make this a reality, you need to plan ahead, and you need to prep yourself or your clients for the possibility that they may need to file a lawsuit. The good news is, in the long run, it is cheaper than premium processing.
The Administrative Procedure Act prohibits agencies from unlawfully delaying decisions. A petitioner can sue the agency in federal court, asking for an order to make a decision. The Court will allow the agency a “reasonable” amount of time to make a decision. As anyone who made it through law school will attest, “reasonableness” requires facts and explanation. Here are some starting points.
The APA actually requires USCIS to give “due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” By definition, this is not a one size fits all process. You need to lean forward, and build your case for a potential delay challenge when you file the petition.
Its hard to say that they agency did not “give due regard for convenience and necessity” if you don’t give them that information in your employer and attorney letters.
First, you should remind USCIS of their statutory duty in your letter accompanying the petition.
You also need to explain the realities of your individual business, and show them how much lead time your business needs to get an employee in place working on the first day of the validity period. Explain the “convenience and necessity” of your situation.
From past experience you know how long consular processing takes, on boarding your employees, getting them settled in housing in a new country and city, and all the small things that keep an employee occupied before starting a job.
Explain this, in writing, to the agency. (Ok, really, you are explaining it for a future court, but if the agency is aware of the information and rejects it your court case is much better.)
USCIS prohibits filing a petition earlier than six months before the first day of employment. Subtract from that six months your onboarding process, processing time, and acclimation period for your employee. Then subtract an additional 60 days (time between complaint is filed and the government has to answer a delay challenge in court). That is a rough approximation of a reasonable date. Then, you identify the date by which you need a decision.
Using a decision from the D.C. Circuit, courts evaluate how much time is reasonable for a government decision using the TRAC factors. It’s a six part test, but like all good judicially created tests, the factors over lap. You should mention this in your petition letters, and let the agency know you intend to hold them accountable.
TRAC (1) & (2) the time agencies take to make decisions must be governed by a rule of reason: where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
The first two factors look at what Congress said about the processing time, and if the agency has a rule of reason.
Given that every Service Center that processes H-1B petitions has a radically different processing time, its safe to say the agency has failed to create a rule of reason. Point to Plaintiff.
Congress gave an anticipated timeline of 30 days for a nonimmigrant visa. Point to Plaintiff.
TRAC (3) & (4) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
The third and fourth factors look at the nature of the underlying decision and need.
If your petition is for a physician in an medically underserved area, or is working on projects impacting public safety, use those facts in your letter. Point to Plaintiff.
For other cases, point out you are asking the agency to process the petition at the speed anticipated by Congress, and not asking for any special relief.
TRAC (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and
Remind the agency that every day beyond the requested start date is effectively a partial denial of the visa petition. The agency is required to explain in writing why a petition was denied in whole or in part. The employer will never recover those days, and has an interest receiving a timely approval. Demand that they provide you, in writing, an explanation for any future delay that results in the loss of a day(s) of the visa’s validity period.
TRAC (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is 'unreasonably delayed.
While the Court does not need to find impropriety in the agency’s delay, it sure wont’ hurt to show the court where the agency is guilty.
Here, point to ballooning processing times, and the impact this is having on operations. Highlight that the agency runs on receipts, and pays for its processing on the backs of your visa petition fees. They recently increased fees to hire more people, while at the same time the number of petitions has decreased. So why have processing times gone from months to years?
If you prepare your employer’s letter and the attorney letter with all of the above information, you can file a court case challenging an unlawful delay with minimal prep time. Depending on the local rules for the district court where you file, you may also be permitted to file a simultaneous summary judgment motion.
The reality is that no attorney working in the Department of Justice wants to stand up in court and make excuses for why USCIS can’t do their job on time. If you bring your “A” game to your delay challenge in court, it should sail through, resulting in a timely decision arriving in your mail box long before the judge makes a decision.
Going forward, the agency will start to learn that when you include the TRAC factors in your letter you are looking at standing up to unlawful delays.
All of this for roughly the same price you used to give USCIS to do their job on time