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Immigration Law

Texas Supermarket Settles Visa Suit With USCIS - Law360

"Texas supermarket chain H.E.B. Grocery Co. LP has dropped its lawsuit against the U.S. Department of Homeland Security after its senior computer programmer was able to secure work authorization under a recently issued DHS rule.

U.S. District Judge David A. Ezra signed an order Thursday dismissing the suit, which challenged U.S. Citizenship and Immigration Services’ denial of an extension of Rajitha Peddulla's temporary work visa.

In a joint filing with Peddulla’s attorney a day earlier, the government told Judge Ezra that USCIS approved her application for H-4 status in May and subsequently approved her employment authorization three weeks later on June 10. 

Under a rule that went into effect last month, spouses of certain high-skilled visa holders, who are classified as H-4, are allowed to obtain work authorization. Finalizing the rule was part of the executive actions unveiled by President Barack Obama last November.

An attorney for HEB did not immediately return a request for comment Monday.

The ruling brings a close to a lawsuit the San Antonio-based grocer filed in February, appealing USCIS's  final decision a month earlier to deny two petitions for a three-year extension of Peddulla's H-1B visa status. The H1-visa allows U.S. businesses to hire foreign workers in the science, engineering and computer programming fields.

A citizen of India, Peddulla was granted an the visa to work as a senior developer for HEB for a three-year period beginning in October 2008. At the expiration of that period, she was granted an extension until September 2014.

Before the end of the second three-year period, HEB filed a petition for another extension, which was approved by USCIS. But shortly after that approval was granted, Peddulla temporarily exited the U.S. leading to a mix-up when she was readmitted based on an old approval notice that did not reflect her most recent H-1B extension.

In order to update her records, HEB filed a second I-129 petition that requested the same approval USCIS had already granted. But in November, USCIS notified HEB that it would deny the second petition and revoke the first, a decision that was finalized in January.

According to the complaint, Peddulla's first petition was revoked because she did not have a pending or approved Form I-140, a form to petition for an alien worker to become a permanent resident in the U.S.

HEB's suit contended that USCIS's decision was arbitrary, capricious and an abuse of discretion, and the company sought an injunction to block enforcement of the decision so that Peddulla was not deported while the case was pending and so HEB was not prosecuted for employing Peddulla during the proceedings.

The company withdrew its injunction bid in early May, after the government agreed to expedite her application for H-4 status and employment authorization.

The H-4 spousal work rule is currently being challenged in a separate lawsuit by the group Save Job USA, which claims the rule hurts its members by increasing the number of competitors for jobs. A judge in Washington, D.C., refused their request to pause implementation of the rule last month.

HEB is represented by Robert M. O'Boyle and Kate McFarland of Strasburger & Price LLP.

The government is represented by acting U.S. Attorney Richard L. Durbin Jr. and Assistant U.S. Attorney Gary L. Anderson.

The case is H.E.B. Grocery Co. LP v. Jeh Charles Johnson et al., case number 5:15-cv-00112, in the U.S. District Court for the Western District of Texas." - Law360, June 22, 2105.