In a 43-page lawsuit, IT Serve Alliance, an association of IT service organizations that represents over 1000 IT companies, has questioned whether USCIS has the authority to limit how long professionals can work on an H-1B visa. 

The lawsuit read, “USCIS has unlawfully charged US companies approximately $350 million in visa fees over the past six years. The plaintiffs now seek a refund. For the reasons below, this Court must set aside visa denials based on the nonpayment of this unlawful fee, enjoin the Agency from continuing to charge this fee, and refund all payment of these fees for the past 6 years”

Represented by the attorneys Jonathan Wasden and Bradley Banias of Wasden Banias LLC., the consortium filed the lawsuit against the USCIS. Jonathan stated that IT Serve will not stand by and allow USCIS’ arbitrary policies and fees to harm its members. IT Serve is taking the lead in protecting US companies from business-killing policies.

The plaintiffs are IT Serve Alliance, iTech US, Smart Works, and Saxon Global. On the other hand, the defendant is Ken Cuccinelli, the Director of the USCIS. However, the lawsuit will succeed if the consortium manages to convince the US District Court that USCIS is unlawfully charging ‘50/50’ companies with a $4,000 fee for H-1B change of status, even when employees are inside the US. 50/50 companies are those with at least 50 employees and 50% of their workforce is in H-1B or L-1 visas. 

IT companies argued that a fee of $4,000 should have only been charged at the time an H-1B professional first enters the US. They pointed out a statement from the Immigration and Nationality Act (INA) and said that an application for a change of status is not an application for admission. On this basis, the fees for H-1B change of status should be ruled not only arbitrary but also capricious and that USCIS should refund the excess amount it collected over the past six years.

The INA states, “The term ‘application for admission’ has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa. The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

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In 2010, the House of Representatives introduced the Border Admission Fee (BAF) as $2,000 for a period of four years and then another bill in 2015 increased the fee to $4,000. USCIS charged an additional $2,000 on BAF from all 50/50 companies filing for H-1B visas for initial status or change of employers. Moreover, USCIS also started denying all H-1B applications for 50/50 companies that failed to submit this fee. 

Defending USCIS, Erin Green, the managing attorney of EEG Immigration Law Group, stated that when USCIS receives incorrect fees, they send the application back to the organization with an explanation that the proper fees were not submitted. In addition, Green said that the organization would have to re-submit the application with the correct fees.

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