Court Sanctions Against USCIS Could Affect All Visa Adjudications

Stuart Anderson, Forbes, June 25, 2019

"U.S. Magistrate Judge Joaquin V.E. Manibusan, Jr. has recommended to the U.S. District Court of Guam that a Motion for Contempt be granted and sanctions be ordered against U.S. Citizenship and Immigration Services (USCIS) in a case brought by businesses in Guam that file for H-2B petitions. Although H-2B petitions are for jobs that do not require a college degree, the case carries implications for H-1B petitions for high-skilled foreign nationals. ... Jonathan Wasden, litigation director of Economic Immigration Support Services, believes the case may have wider implications, particularly on H-1B cases, since the H-2B lawsuit hinges on USCIS changing its standard of adjudication. That is also an important issue in ITServe Alliance v. USCIS, a case Wasden has filed against USCIS and which awaits important rulings. (See here for a discussion of that case.) The sanctions are also significant. “You don’t get sanctions against the government unless it has done something terribly wrong,” Wasden said in an interview. “As a general rule, the federal government never is held in contempt and never is sanctioned. They may get threatened by a court but normally after a briefing and some chastening the court avoids dropping the hammer or gavel on the government.” Wasden notes that in the H-2B case the court entered a preliminary injunction blocking the agency from certain actions but that the government disregarded the judge’s order and continued to do what the court had determined to be unlawful. “The agency didn't realize that the denial letters and Requests for Evidence, all of which prove it violated the court's order, could be used against it in court,” said Wasden. “It’s kind of hard to argue with a straight face you are complying when the dated denials and RFEs all prove you’re violating the order. So not only did the agency violate the court's order, but it got caught in a demonstrable lie. I don't think the court had any choice but to enter a contempt citation against the agency. The integrity of the court system is at stake here.” ... “The issue in this case is not unique to H-2B,” said Joseph, “USCIS has been playing willy-nilly with the law on nearly all types of visa applications – from functional managers in the L-1A context, to specialty occupation in the H-1B context, to L extensions on the Canadian border and many more.” "