For several years, USCIS has been moving more and more to a secretive style of carrying out its role. Gone are the days when rules were published for comment. Examiners operate in anonymity. A two year appeals process and expensive fees mean that most people simply give up when their cases are denied. Examiners more and more frequently seem to be deciding cases based on their own made up standards rather than what the law requires.
I'm happy to report that the American Immigration Lawyers Association is taking the agency to court. Director Mayorkas all but begged AILA to do this when he suggested at its recent annual meeting that the bar and individual lawyers sue the agency when problems are not resolved. It's as if he needs the help of outsiders to help reign in an agency that is seemingly ungovernable.
Here is the press release:
Today the American Immigration Council's Legal Action Center filed a lawsuit against the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA) seeking the public release of records concerning agency policies and procedures for the "H-1B" visa program - a program which allows U.S. businesses to temporarily employ highly-skilled foreign workers.
AILA had pursued disclosure of the documents through two separate Freedom of Information Act (FOIA) requests, both of which were denied in full by the government. In its complaint filed in U.S. District Court for the District of Columbia, AILA seeks the court's intervention to compel the government to release the requested records.
The FOIA litigation centers on the government's H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers - such as scientists, engineers, and computer programmers - in occupations that require theoretical or technical expertise in specialized fields. Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections - expected to reach 25,000 visits in 2010 alone - in connection with H-1B cases. Yet USCIS has kept secret the rules and guidelines related to the review process. The dearth of publicly available information on the government's heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.
"The requested documents are the kind that a government agency should release as a matter of course," said Crystal Williams, Executive Director of the American Immigration Lawyers Association. "That we had to file a FOIA request, and that the request was denied, is counter to the President's directives for a more open and transparent government. This lawsuit seeks to require the agency to be true to the open government directives of the Obama administration."
"It is in the public and the agency's interest to release the documents sought by AILA," said Mary Kenney, attorney at the American Immigration Council's Legal Action Center. "The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA's FOIA requests."
AILA is also represented in the litigation by Steptoe & Johnson LLP.