US IT Body, Cos sue USCIS for $350-m visa fee refund

Pune: A US IT industry body and three US staffing firms have jointly filed a class action lawsuit against the US agency that deals with issuance of visas to foreign nationals, seeking a refund of $350 million that they claim is excess fee charged for H-1B visas. The petition was filed on Sunday by industry body ITServe Alliance and Dallas-based staffing firms iTech US, Smart-Works and Saxon Global.
According to the petition, filed in the District Court of Columbia, the US Citizenship and Immigration Services (USCIS) has charged technology companies $4,000 under a rule that applies to companies with 50 or more employees, of which at least half are on H-1B or L-1 visas. The fee, the petition contends, should only be levied on initial visa applications and not for a change of status, which happens when the employee is already working in the US.



The $2,000 Border Admission Fee, which was introduced in 2010 for a period of four years, was extended till 2025 and doubled to $4,000 in 2015. It was unclear why the lawsuit is seeking a refund five years after the fees were increased. The petition has demanded that USCIS stop charging the fee on future visa applications. It does not, however, seek any damages, although it asks for a refund for fees already paid. “I think the plaintiffs make a good argument that by a fair reading of the text of the law, USCIS should not be charging the fee on change of status applications,” said Stuart Anderson, executive director, National Foundation for American Policy, a pro-immigration not-forprofit organisation.

The crux of the lawsuit — filed by Jonathan Wasden and Bradley Banias of US law firm Wasden Banias — is around the interpretation of the wording ‘application for admission’. “The Immigration and Nationality Act (INA) defines an “application for admission” as: “the application for admission into the US and not to the application for the issuance of an immigrant or nonimmigrant visa…The INA defines “admission” as “the lawful entry of the alien into the United States after inspection and authorisation by an immigration officer,” the petition reads.

The USCIS, it alleges, announced that the Border Admission Fee would be applied to all 50/50 companies filing H-1B applications for initial status or change of employers, charging them an additional $2,000 for every initial and change of employer H-1B application. Further, USCIS started denying all initial or change of employer H1B applications for 50/50 companies that did not submit this fee, the lawsuit said. “The Plaintiffs have a very strong and straightforward case. The clear language (of “admission”) must be construed as Congress’ intent not to subject H-1B change of status cases to the additional fee, because once a foreign national is present in the US, he has plainly already been admitted,” said Erin Green, managing attorney, EEG Immigration Law Group.