Federal Court Rules Against USCIS in H-1B ‘Itinerary’ Case
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
On May 20, 2020, a U.S. district judge in Atlanta, Georgia, found that no statute or regulation requires a petitioner to submit a detailed itinerary in the way required by a U.S. Citizenship and Immigration Services (USCIS) new interpretive memorandum. The court found no basis in the law or regulations “for requiring a petitioner to submit evidence of specific, qualifying work requirements and micro-location information for every single day of the visa period.” Accordingly, the court said, the agency’s interpretation of the statute and regulations as applied in this case “is owed no deference.” A petitioner may meet its burden of showing non-speculative employment, service in a specialty occupation, and the regulatory requirement of an itinerary, if applicable, “without providing evidence with that level of micro-granularity.
The court noted that if USCIS finds that “there is a policy justification for requesting all of this information, it possesses the authority to promulgate new regulations by notice and comment.” Because the court found nothing in the statute or regulations requiring a “detailed itinerary” setting forth everything the prospective visa beneficiary would be doing day by day for three years, there was no interpretive basis for the agency to suggest that such information is necessary or advisable in most cases to include in connection with an H-1B petition. The court determined that the agency had “misconceived the law” and remanded the case to the agency for reconsideration.