Companies Suing Over H-1B Denials

H-1B denial rates have been on the rise. In FY 2016, the denial rate of initial H-1B petitions was 10%, it reached 13% in FY 2017, 24% in FY 2018, and 32% in FY 2019.

Two complaints over the past couple of weeks show how some petitioners are dealing with what they believe to be unjust decisions.

On May 29, 2019, Gate 39 Media filed a complaint in the US District Court of Columbia against USCIS and L. Francis Cissna in his official capacity as Director. Gate 39 Media is arguing that the denial of Ms. Feiying Hu’s H-1B petition was arbitrary and unlawful. Gate 39 Media, headquartered in Chicago, is a full-featured marketing and technology company that serves the financial industry and wants to hire Ms. Hu as a Software Web Developer.

Ms. Hu, a Chinese citizen, has a Bachelor of Science degree in finance and accounting from Iowa State University of Science and Technology. She also has a Master of Science degree, with a major in information systems and a concentration in business web analysis and development from DePaul University, College of Computing and Digital Media (Chicago).

According to the complaint, in April 2018, Gate 39 Media submitted the H-1B petition (master’s exemption) and in September 2018received a Request for Evidence, which the company responded to. However, in January 2019, USCIS denied the petition.

Gate 39 Media is arguing that USCIS disregarded substantial probative evidence and requesting that the denial be vacated, and the matter be remanded with instructions that the petition be approved.

A very similar complaint was filed on May 16, 2019, by PerformLaw against USCIS and L. Francis as well. That complaint alleged that the denial of Mr. Jan Sander’s H-1B petition as a Market Analyst was arbitrary and unlawful.

PerformLaw is a Louisiana Limited Liability Company that provides services, such as Client Profitability Analysis and Marketing Development, to law firms. PerformLaw wants to hire Mr. Sander as a Process Analyst to build the marketing performance of its clients and its own marketing performance.

Mr. Sander is a German citizen with a Bachelor of Science degree in Business Administration from Elon University (North Carolina) and an MBA with a concentration in Marketing from the University of New Orleans.

According to the compliant, in April 2018, PerformLaw submitted the H-1B petition, master’s exemption. On July 2, 2018, USCIS issued a request for evidence which PerformLaw responded to and then in November 2019, USCIS denied the petition. PerformLaw submitted a complaint in the US District Court for the District of Columbia arguing that USCIS disregarded substantial probative evidence in denying the petition and requested that the denial be vacated, and the matter be remanded with instructions that the petition be approved.

These cases will be monitored, and further updates will be provided as they come.