Court Lacks Jurisdiction over H-1B Denial Pursuant to IIRIRA—A Cautionary Tale

In CDI Information Service v. Reno, No. 00-1983 (6^th Cir. Jan. 28, 2002), CDI Information Service ("CDI") and Prakash Vaideeswaran, their foreign national employee, filed a claim with the District Court against the Department of Justice requesting a review of the INS’ decision to deny CDI’s I-129 petition to extend the foreign national’s H-1B nonimmigrant visa. The Service denied the petition due to its determination that the foreign national "failed to maintain the status previously accorded because he engaged in unauthorized employment in a state other than Oregon." (emphasis added)

On November 17, 1998, CDI had filed an I-129 H-1B petition requesting an extension of the foreign national’s status. Along with the petition, they submitted copies of the foreign national’s recent pay stub to verify that he was in the U.S. in valid H-1B status. The pay stub dated November 6, 1998, included a "$52.32 itemization classified as ‘moving’." In response to this, the Service requested his most recent pay stub since the date of the filing, or a voucher with detailed information regarding the state in which taxes were withheld. The employer provided the foreign national’s pay stubs for November 20, 1998, December 31, 1998 and January 15, 1999 in response to the Service’s request. The December pay stub apparently included a $1,578 itemization for moving and "a change in state withholdings from Oregon to Hawaii." Based on the evidence CDI submitted, the Service concluded that the foreign national had moved from Oregon to Hawaii and CDI had never filed a new or amended H-1B petition based on this transfer. The Service denied CDI’s petition as a result.

In spite of the exponential number of petitions filed with INS at the various Service centers and the backlogs in processing both immigrant and nonimmigrant visa petitions, adjudications officers are taking the time to closely review documentation submitted in support of petitions. To the surprise of many, they may be taking a closer look than expected. Of course, the dilemma CDI and its foreign national employee faced may have been easily avoided with the proper and timely filing of a new or amended H-1B petition. It is true that the H-1B program provides U.S. employers with an invaluable way to employ talented individuals from abroad. However, as employers are aware or should be aware, this privilege includes obligations and requirements that must be satisfied to ensure that foreign-born employees remain in status and that employment of the foreign national is in compliance with both INS and Department of Labor regulations. Failure to comply will likely lead U.S. employers down the same dead end road as CDI .

It is also interesting to note that the decision of the Appeals Court in this case has inadvertently expanded the discretionary (and now unreviewable authority in the Sixth Circuit) of the INS in adjudicating H-1B petitions. When the case was initially filed at the district level, the district court accepted CDI’s claim that the court had the authority to hear the case and went on to affirm the INS’ denial of the H-1B petition. Upon appeal, the United States Court of Appeals for the Sixth Circuit addressed the issue of the district court’s jurisdiction and authority to even hear the case. After a review of the applicable regulations, the Appeals Court ordered the remand and dismissal of CDI’s suit against the Department of Justice on the basis that the Court lacked jurisdiction and had no authority to hear the case.

According to the Appeals Court, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), was "enacted to protect the discretion of the Executive . . . [and] contains a number of provision[s] limiting or eliminating judicial review of particular Service decisions." Interpreting IIRIRA and the regulations governing admission of a foreign national in H-1B status, the Appeals Court determined that the regulations clearly "confer discretion on the Service" thereby stripping the courts of jurisdiction over the Service’s discretionary determinations regarding H-1B petitions.

The Sixth Circuit Appeals Court appears to be in disagreement with other court interpretations that have construed the language of IIRIRA, specifically section 1252(a)(2)(B)(ii), "to apply only in the context of final orders of removal, and have held that it does not preclude review of otherwise discretionary decisions, provided such decisions are challenged outside of the removal context."

Previous courts have concluded that the section is limited to the removal context; however, the Sixth Circuit Appeals Court’s decision and interpretation has clearly expanded the section’s applicability, thereby expanding the Service’s unreviewable authority and discretion. This expansive interpretation of the limitations of judicial review of Service decisions is not likely to lead to an increase in confidence of the fair adjudication of petitions filed with the Service on behalf of U.S. organizations seeking to employ foreign nationals, or U.S. citizens attempting to reunite their families. We should all be concerned when an administrative agency’s discretion continuously increases while review of their discretion slowly deteriorates. Our system of government depends on the checks and balances that are supposed to be inherent among the three branches. When one branch decides to step aside, the integrity of the system comes into question. One lesson to be learned: we should all be paying closer attention.

  View a copy of the Court Decision (PDF/120 kb, 4 pages)