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.""