Employment Based

The enforcement of immigration laws is a complex and hotly-debated topic. Learn more about the costs of immigration enforcement and the ways in which the U.S. can enforce our immigration laws humanely and in a manner that ensures due process.

Recent Features

  • Litigation

USCIS’ Unlawful Denial of H-1B Petitions Spurs Class Action Lawsuit

This nationwide class action lawsuit challenges U.S. Citizenship and Immigration Services’ pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by United States businesses.  

All Employment Based Content

  • Litigation

Employment Authorization Documents Adjudication Delays

Faced with increasing reports from immigration lawyers of Employment Authorization Documents adjudication delays, the Council and several partners filed this lawsuit against USCIS and DHS.
  • Amicus Briefs

Mantena v. Napolitano - Second Circuit

December 15, 2014
The Council, with AILA, filed an amicus brief arguing that a district court has jurisdiction to review procedures followed by USCIS to revoke an employment-based visa petition. Amici argue that INA § 242(a)(2)(B), which limits judicial review over certain discretionary decisions, does not preclude review over the question of whether USCIS was required to provide notice of the visa petition revocation proceedings to the beneficiary. This is particularly true where, as in this case, the beneficiary had utilized the “porting” provision of INA § 204(j) to change employers more than 2 ½ years earlier, but USCIS issued its notice of intent to revoke only to the former employer and revoked the petition when the former employer did not respond.
  • Litigation

Visa Programs for High-Skilled Workers

Valorem, an IT consulting company, petitioned to employ a software developer for three years in H-1B status as part of a project development team at its office. Initially, USCIS denied the petition, but later – after Valorem, represented by AILA member Susan Bond, filed suit – approved it for one year.
  • Amicus Briefs

Simply Soup Ltd. d/b/a NY Soup Exchange - BALCA

August 29, 2014
The Board of Alien Labor Certification Appeals (BALCA), the administrative body at the Department of Labor that reviews denials of PERM labor certifications, concluded that the Certifying Officer (CO) had the discretion, but not the obligation, to request missing documentation. BALCA failed to address arguments made by the Council and AILA in their amicus brief: that due process and fundamental fairness, as well as the PERM regulatory structure, require the CO to request supplemental documentation when the employer’s compliance with documentation requirements is evident from the record.
  • Amicus Briefs

Microsoft Corporation - BALCA

November 7, 2013
The Council and AILA filed an amicus brief in an en banc case pending before BALCA, an administrative body at the Department of Labor that reviews denials of PERM labor certifications. The case turned on the proper interpretation of a regulation which requires employers to notify certain laid-off U.S. employees about new job opportunities before the employers are permitted to hire foreign workers. The brief focused on the agency’s failure to provide fair warning before applying a new, more restrictive interpretation of the notification requirement.
  • Litigation

Visa Programs for High-Skilled Workers

On behalf of AILA, the American Immigration Council, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit against DHS and USCIS in July 2010 seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program.
  • Litigation

Lawsuit on Visa Bulletin, Adjustment of Status

On July 17, 2007, the American Immigration Council was poised to file a lawsuit alleging that the federal government’s refusal to accept tens of thousands of applications for green cards (and discouragement of thousands of other workers from even applying) violated federal statutes, regulations and policies, as well as the U.S. Constitution. Many of these applicants had waited in line for years and were following the government’s rules to obtain a green card. The suit would have argued that the government must comply with its own regulations and policies and accept these adjustment of status (“green card”) applications.
  • FOIA

H-1B Fraud Investigations FOIA

On behalf of the American Immigration Lawyers Association (AILA), the Council, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July...

  • FOIA

L-1B Adjudications FOIA

In May 2012, the American Immigration Council filed a FOIA request seeking records issued by USCIS and/or DHS, or used by USCIS and/or DHS, from January 2008 to the...

  • Practice Advisories

Federal Court Jurisdiction Over Discretionary Decisions After REAL ID

April 5, 2006
This Practice Advisory discusses the changes that the REAL ID Act made to INA § 242(a)(2)(B) and outlines an analysis for whether §242(a)(2)(B) applies to a particular case. It also discusses federal court jurisdiction over discretionary decisions after the REAL ID Act in the removal and non-removal contexts. The government has asserted this jurisdictional bar in employment-based, family-based, and humaritarian-based immigration cases.
  • Blog

Restrictions on Foreign Workers Will Hurt America’s Recovery From COVID-19

October 8, 2020

The Trump administration issued two rules October 8 that, if not overturned, will further restrict legal immigration. The Department of Homeland Security (DHS) issued the first rule, which only...

  • Blog

Federal Judge Limits Trump Administration’s Foreign Worker Ban

October 2, 2020

On October 1, a federal judge ordered the Trump administration to stop enforcing parts of a presidential proclamation that banned many foreign workers from entering the United States. The court...

  • Blog

How Trump’s COVID-19 Immigration Ban Has Impacted Family-Based Immigration

October 1, 2020

The Trump administration is successfully using the COVID-19 pandemic as a pretext to alter the U.S. system of legal immigration. New government data makes clear that these changes will...

  • Blog

Farmworkers Need Better Support to Survive COVID-19

August 5, 2020

The dangers to America’s farmworkers—primarily immigrant men from Mexico with temporary H-2A visas—have long persisted under a system that is ripe for abuse. But those risks have only grown since...

  • Blog

The Trump Administration Expands Legal Immigration Ban, Using COVID-19 Pandemic as Excuse

June 23, 2020

The Trump administration has banned foreign nationals on certain employment-based nonimmigrant visas from entering the United States. The new ban begins June 24, at 12:01 am ET. The administration...

  • Blog

Immigrant IT Workers Play Critical Role in the Coronavirus Pandemic’s Virtual Economy 

June 8, 2020

The coronavirus pandemic has radically altered the U.S. workforce. Many people have lost their jobs, while others have had to continue to go to work despite the serious health risks. Some sectors...

  • Blog

Presidential Proclamation Bars Certain Students and Researchers From China

June 1, 2020

President Trump issued a proclamation to prevent certain Chinese nationals from entering the United States using academic student (F) or exchange visitor researcher (J) visas. The proclamation...

  • Blog

Asian Americans Play Key Role in Fighting Coronavirus, Even as They Suffer Racism Spurred by It

May 29, 2020

May 31 closes out Asian American and Pacific Islander (AAPI) Heritage Month, a time dedicated to recognizing the contributions of Asian Americans and Pacific Islanders in the United States. The...

  • Blog

Exchange Visitor Program Faces Uncertainty as US Opens but Embassies Remain Closed

May 20, 2020

The coronavirus pandemic has affected day-to-day life for everyone, including foreign nationals who planned to participate in the U.S. Department of State’s Exchange Visitor Program. These...

  • Blog

USCIS Consistently Denies H-1B Petitions. This Lawsuit Argues It’s Misinterpreting the Law.

April 17, 2020

U.S. Citizenship and Immigration Services (USCIS) has been denying many H-1B petitions by misinterpreting the law. On April 16, 2020, the American Immigration Council and partners filed a...

  • Blog

The Biden Administration Is Already Supporting Employment-Based Immigration, But Uncertainty Remains

February 5, 2021

Business immigration has already benefited from the change in administrations. On January 25, President Biden issued an executive order directly replacing a Trump-era executive order that wreaked...

  • Blog

What You Need to Know About the Latest Changes to the H-1B Registration Process

January 14, 2021

The Department of Homeland Security (DHS) recently issued a final rule changing the way U.S. Citizenship and Immigration Services (USCIS) selects the registrations of U.S. employers that want to...

  • Blog

The United States Needs a New Approach to Visas and Immigration Benefits

January 8, 2021

This article is part of the Moving Forward on Immigration series that explores the future of immigration in the aftermath of the 2020 presidential election.  The Biden administration faces a...

  • Blog

District Court Stops Regulations Restricting the H-1B Visa Category

December 2, 2020

On December 1, a federal district court judge disrupted the Trump administration’s relentless attack on legal immigration by halting two new sets of regulations. The U.S. Chamber of Commerce and...

  • Practice Advisories

Practice Tip: The Government Answered a Complaint Alleging Administrative Procedure Act Violations – Now What?

November 20, 2020
This practice tip responds to a frequent question from attorneys new to federal court litigation who filed a lawsuit claiming the government violated the Administrative Procedure Act.
  • Blog

USCIS Is Proposing an H-1B Rule That Ignores Why the Category Exists

November 13, 2020

U.S. Citizenship and Immigration Services (USCIS) recently issued a proposed rule that will change the way it selects the registrations of U.S. employers that want to file H-1B petitions subject...

  • Amicus Briefs

Council Submits Amicus Brief Challenging Agency Failure to Undergo Notice and Comment Rulemaking

November 11, 2020
The Council filed an amicus brief supporting plaintiffs’ preliminary injunction and summary judgment motion that the government did not satisfy the stringent requirements necessary to sidestep notice and comment rulemaking.
  • Blog

Three New Lawsuits Challenge Trump’s H-1B Worker Restrictions

October 23, 2020

Three new lawsuits have been filed challenging the Department of Labor’s (DOL) new rules impacting the H-1B visa category, with one also challenging the Department of Homeland Security’s (DHS) new...

  • Blog

How Proposed Changes to ‘Duration of Status’ Rules Will Impact Students and Exchange Visitors

October 20, 2020

The Department of Homeland Security (DHS) has published a proposed rule that will make it more difficult for individuals applying for admission in a J-1 exchange visitor or F-1 student visa...

  • Blog

Restrictions on Foreign Workers Will Hurt America’s Recovery From COVID-19

October 8, 2020

The Trump administration issued two rules October 8 that, if not overturned, will further restrict legal immigration. The Department of Homeland Security (DHS) issued the first rule, which only...

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