H-1B Litigation Victory in Seattle: Abdur-Rahman v. Napolitano

Devin Theriot-Orr writes: "Rashid Abdur-Rahman and his family are one of many who have been caught up in USCIS's change in policy regarding what constitutes an employer-employee relationship for purposes of H1B status. USCIS approved his H1B petitions for the same employer several times, and his employer filed a timely extension request in 2006. USCIS failed to take any action on the requested extension for over two years. During that time, Mr. Abdur-Rahman moved on to a new employer. USCIS then issued in 2008 a lengthily RFE to his old employer, requesting itineraries and end-client contracts for his work two years earlier in 2006. The employer responded and provided the documentation that was available, but indicated that, due to USCIS delays, many other documents were no longer available. USCIS denied the petitions, and as a result, the family's quest for lawful status was derailed.

Unsatisfied with this result, the family filed suit in 2009 challenging the denials. All the cases, including the adjustment applications, were reopened for reconsideration and the district court challenge was placed on hold. Meanwhile, the family had not traveled home for many years, so they applied for and received advance parole documents to return to India for a one-month visit. Mr. Abdur-Rahman also had received approval for a new H1B petition. The family planned to receive the visas and return home. USCIS was aware of the travel plans because the family were forced to engage in motions practice to receive approvals on the advance parole documents.

Only days after they departed, USCIS denied all of the petition. USCIS did not send notice of the denials to the plaintiffs or the plaintiffs' counsel. The visa petition was stuck in administrative processing at the consulate, so (with two children entering their junior and senior years in high school), the family decided to return on the advance parole documents.

Chicago CBP denied the family entry, claiming their APs were automatically revoked upon denial of the AOS applications. The family explained that they had a pending district court action. The CBP staff claimed that the family had no case. The family urged CBP to contact the court or their attorney to confirm the information. CBP declined, giving the family the "option" of being detained over night (with their 3 year old USC son) for deportation in the morning, or "voluntarily" returning.

Attached are two published decisions. The first is the court's order from November 2010 granting our motion for a preliminary injunction, holding that CBP's actions in denying the family the right to a removal hearing before an immigration judge violated the U.S. constitution and directing the government to permit the family to return within 30 days. The family did return in December 2010 in accordance with the court's order.

The second is the decision on the merits, granting our motion for summary judgment in full and finding that each USCIS decision was arbitrary and capricious. This will be of particular use where USCIS delays issuance of an RFE and then requests evidence that is no longer available. For example, the Court writes: "by delaying the adjudication, USCIS precluded [the petitioner] from executing a formal written contract, which then became grounds for ultimately denying the petition." It is also useful when there is a pattern of approvals by USCIS for the same employment: "This court cannot agree with the conclusion that USCIS' district directors are so incompetent that three different directors would make the same 'mistake' on [petitioner's] petitions over the course of more than 5 years.""