On July 20th, the American Immigration Council Legal Action Center, an organization dedicated to ensuring fairness in immigration law, filed a lawsuit with the U.S. District Court of D.C. against both USCIS and the Department of Homeland Security for the American Immigration Lawyers Association (AILA).

AILA maintains that they sought the release of documents in regards to H-1B policies and procedures on two separate occasions via the Freedom of Information Act; the government denied both requests. In filing this lawsuit, AILA hopes that the court will force the government to release these records.

Enacted in 1966 by former President Lyndon B. Johnson, the Freedom of Information Act made it mandatory for the government to release certain documents and information owned by the United States government. The act specifically defines what types of documents are subject to both disclosure and exemption. Over the last 44 years, several other amendments have been added to the Freedom of Information Act.

In accordance with the Freedom of Information Act and AILA’s lawsuit, Crystal Williams, Executive Director of AILA has said that “the requested documents are the kind that a government agency should release as a matter of course . . . 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”.

Adding to the rationale behind the lawsuit, Mary Kenney, an attorney for the American Immigration Council’s Legal Action Center has stated that “it is in the public and the agency's interest to release the documents sought by AILA . . . 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”.

H-1B is a visa category reserved for U.S. employers who want to temporarily bring over foreign employees. The purpose of the H-1B visa is to enlist the specialty services of an alien worker. As of 2008, USCIS has made the H-1B review process increasingly more difficult, largely increasing the number of surprise worksite visits. Just this year, USCIS has already conducted 25,000 H-1B worksite visits. Despite USCIS’ new implementation of H-1B policies and procedures, they have continued to keep most of their guidelines under wraps. With the lack of such information available to the public, businesses have found it difficult to successfully fulfil required protocol and specifications during the application review process.

As disclosure of such information is also helpful to immigration law practitioners, we hope that AILA’s lawsuit against USCIS and the DHS is successful.     

In addition, USCIS released the latest H-1B visa information on July 20, 2010. As of July 16, 2010, USCIS reported that 25,300 cap petitions had been filled and 11,000 spots for advanced degree holders had also been filled. Every year, there are 65,000 regular spots (commonly known as “cap petitions”) and an additional 20,000 spots for advanced degree holders. Due to the bad economy, H-1B availability will likely cease in March 2011 at the current pace.