Lawsuit alleges US illegally collected $350 million in visa fees from tech companies

BENGALURU: A lawsuit has been filed in a US court against the US Citizenship and Immigration Services (USCIS) alleging that the agency unlawfully charged US tech companies a total of $350 million for a change of status application to H-1B visas.
The plaintiffs – ITServe Alliance, iTech US, Smart Works and Saxon Global – have sought that the court must stop USCIS from continuing to charge this fee and refund all payments of these fees for the past six years.
ITServe Alliance is the largest association of IT services, staffing and consulting organisations in the US, with over 1,250 companies as members. The other three co-plaintiffs are members of ITServe Alliance.

The H-1B visas used to cost $2,000. A few years ago, an additional $4,000 was imposed on H-1B and $4,500 for L-1A and L-1B petitions, as a 'Border Admission Fee’ (the extra collection was to be used for the US border protection programme). The additional fees apply to petitioners who employ 50 or more employees in the US, with more than 50% of those employees in H-1B or L-1 non-immigrant status (described as 50/50 companies). Most large Indian IT companies fall in these categories. USCIS charged this fee for applications seeking admission in H-1B status, as also for applications seeking changes of status to H-1B (a change from another visa category, such as a student on F-1, to H-1B).

The plaintiffs allege that the latter was illegal. They allege that from January 17, 2014, to December 18, 2015, the USCIS improperly charged 50/50 companies $2,000 for every change of status application to an initial H-1B visa and a change of status application to a new H-1B employer. And from December 18, 2015, to present, it charged 50/50 companies $4,000 for every such change of status. “Those 50/50 companies have been harmed because they have been charged an illegal fee,” the lawsuit said, and estimates that USCIS collected more than $350 million dollars in such change of status fees.
The plaintiffs alleged that The Immigration and Nationality Act (INA) defines an “application for admission” as: “the application for admission into the United States and not to the application for the issuance of an immigrant or non-immigrant visa.”
Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School, said the lawsuit is important for two reasons: “First, it tries to force the USCIS to follow the plain language of the immigration law, and not effectively change the law by overly expansive interpretations. Second, the lawsuit is important because if the plaintiffs win, the USCIS could be forced to repay US companies about $350 million dollars in excess visa fees paid over the last six years."
The plaintiffs estimate that more than 550 companies qualified as 50/50 companies and acquired more than 31,000 initial H-1B visas in FY 2018.