Earlier this week on June 12, 2018, the American Immigration Lawyers Association (AILA) filed a lawsuit under the Freedom of Information Act (FOIA) challenging USCIS' failure to respond to two FOIA requests asking for records that would explain increased scrutiny and denials of H-1B petitions. Under the Freedom of Information Act, any individual or entity can request from a government entity records that are not available publicly.
The FOIA requests ask for USCIS to uncover their standard operating procedures, memoranda, correspondence, guidance, checklists, and training materials regarding the agency's recent H-1B processing trends.
The two requests ask for records involving two areas of concern:
(1) USCIS' consideration of evidence demonstrating an occupations "prevailing wage" and
(2) USCIS' determination of whether a position is a "specialty occupation."
The requests ask for records that specifically describe, explain, or interpret:
- The term “specialty occupation” under federal regulation 8 U.S.C. § 1184(i), including, but not limited to, records that describe, explain, or interpret the regulatory language “body of highly specialized knowledge,” and/or “specific specialty (or its equivalent)” under [8 U.S.C. § 1184(i)(1)].
- How adjudicators use information contained in Department of Labor resources, including, but not limited to, the Bureau of Labor Statistics’ Occupational Outlook Handbook [OHH], in determining whether a position is a “specialty occupation.”
- How the wage level (i.e., Level 1, Level 2, Level 3, or Level 4), as identified in the Foreign Labor Certification Data Center Online Wage Library (www.flcdatacenter.com) and annotated (in Roman numerals I, II, III, or IV) on the Labor Condition Application, may impact the adjudication of petitions for H-1B classification.
- How the use of a private wage survey, including an "N/A" annotation on the Labor Condition Application in lieu of an assigned wage level, may impact the adjudication of petitions for H-1B classification.
- How the wage/salary offered to the beneficiary by the employer may impact the adjudication of petitions for H-1B classification, including, but not limited to, the relevance of any and all Department of Labor guidance on prevailing wage determinations.
- The rescission of the INS Memorandum, "Guidance Memo on H-1B Computer Related Positions," NSC 70/44.4 (Dec. 12, 2000), and the implementation of the USCIS Policy Memorandum, "Rescission of the December 22, 2000 'Guidance memo on H-1B computer related positions,'" PM-602- 0142 (Mar. 31, 2017).
The concern prompting AILA's requests is due to the recent and unprecedented increase in scrutiny and denials of H-1B petitions within the current administration.
The concern is that USCIS has adopted new adjudication standards without informing the general public of the new standards. The two FOIA requests seek to discover records relating to USCIS' exact methods and considerations in processing evidence submitted within H-1B petitions.
Why the Lawsuit?
Within 30 days of receipt of the 2017 FOIA Request (excluding Saturdays, Sundays, and legal public holidays) and 20 days of receipt of the 2018 FOIA Request, USCIS was required to determine whether to comply with the requests and to notify AILA of its determination and the reasons therefor and of its right to appeal any adverse determination.
Since USCIS has failed to respond to the FOIA requests, AILA filed suit to compel the agency to produce the records to inform the public of their H-1B adjudication practices.
The full compliant can be viewed here.