As I was reporting on the Trump administration’s efforts to change the system for admitting high-skilled foreign workers, immigration attorneys across the country kept telling me that they’d filed more H-1B lawsuits in 2018 and 2019 than they’d ever filed in their careers. I was hearing this anecdotally but wanted to confirm this trend was actually happening. So I went looking for the lawsuits.
Over the last eight months, I built a database of more than 100 H-1B-related lawsuits filed against US Citizenship and Immigration Services (USCIS) since 2006. It is not exhaustive, but it is the most comprehensive database of its kind, combining both publicly available and privately obtained documents that provide a quantitative and qualitative picture of how the Trump administration has implemented its H1B policies—and the unprecedented legal challenges to those policies.
This is a living, growing database, and I welcome assistance or information from attorneys, employers or employees who have filed lawsuits. I will also update the data as necessary.
Collecting H-1B-related complaints
After searching for H-1B-related lawsuits on PACER, the online repository of federal court records, I looked on Bloomberg Law, Lexis Advance, and Westlaw and worked with librarians at UC Berkeley Law Library and San Francisco Law Library. Cornell University Law professor Stephen Yale-Loehr and law student Hun Lee, who were also collecting H-1B-related lawsuits, shared cases with me, and vice versa.
While searching for documents and dockets on Bloomberg Law, I looked for complaints containing the keyword “H-1B.” I searched for cases in which the defendant was USCIS or a former or current director of USCIS. I also searched for complaints or cover sheets that referred to H-1Bs and the Administrative Procedure Act.
Based on the cases found through these searches, I created a spreadsheet of lawsuits. For each case, I downloaded complaints and other related documents if they were available on PACER and RECAP (a cool browser extension that provides free access to federal court documents) and confirmed if they were related to H-1Bs.
In addition to complaints found online, I also identified cases through immigration attorneys who mentioned lawsuits that had not been flagged by legal databases. I also learned about attorneys who were regularly filing H-1B lawsuits and searched PACER for their cases.
Altogether, I documented more than 100 H-1B-related lawsuits filed against USCIS since 2006. A majority of the cases involved individuals or employers challenging the agency’s visa denials. Any lawsuit challenging multiple denials for more than one employee were counted as a single suit. So were consolidated cases in which multiple employers joined to challenge H-1B-related policies, such as the ITServe Alliance case. For this investigation, I’ve only focused on cases filed by H-1B visa holders or their employers.
For every case I identified, I tried to obtain the complaint. Many complaints were not available on PACER, Bloomberg Law, or other databases. I contacted the attorneys who filed the lawsuits and some provided the complaints. Others refused, saying their clients wouldn’t authorize them to release the information. Some cases that Bloomberg or other databases classified as H-1B-related had no information associated with them. I contacted the attorneys attached to those cases multiple times. If they didn’t provide any additional information, I did not count their cases as instances of H-1B denials.
Almost all the H-1B denial cases fall under the Administrative Procedure Act. APA-related cases also include other visa, naturalization and green card cases. Jill Family, a law professor at the Widener University, has been tracking these lawsuits and I used her data to show the uptick in APA-related lawsuits against this administration.
Tracking lawsuit outcomes
I asked attorneys involved in cases filed against the Trump administration during 2017, 2018, and 2019 for the outcomes of those cases, particularly when information about settlements was not made public. Several attorneys provided this information on the condition that it was used in the aggregate and was not directly linked to their clients. I am publishing aggregate outcomes and all publicly available outcomes. I’ve classified them in these categories:
• USCIS reversed its decision before a judge could rule. This includes cases where the agency issued a reversal directly in response to a lawsuit as well as cases where the agency asked for additional evidence and then approved a visa.
• The plaintiff quit. This includes cases where plaintiffs withdrew the suit for various reasons, such as moving to another job or getting a visa approval when they refiled the application. It also includes cases where USCIS upheld its decision upon review and the plaintiff decided to withdraw
• Pending/ongoing litigation
• Judge ruled in favor of USCIS
• Judge ruled in favor of the plaintiff
Analyzing the complaints
Out of the lawsuits I gathered, 74 had complaints associated with them. There were 18 cases in which the complaints were not available, but I was able to find published memorandums, amended complaints, or opinions written by judges. I read the complaints filed in 2017, 2018, and 2019 to determine the reasons for USCIS’s visa denial, the nationality of H1-B holder and their professional qualifications. I only entered information available in the complaint. (In some cases, I found additional information from plaintiffs’ social media profiles, but I didn’t include that information in the spreadsheet.)
I sought to analyze the profiles of the people who were suing the government over H-1B denials in part to see whether the administration is upholding its pledge to deny visa to people who are less educated or less skilled than American workers. I recognize that the lawsuits I found may represent the most egregious examples of denials and may not represent the overall demographics or characteristics of all those who are being denied H-1Bs. But they still provide valuable insight into how the administration has implemented its H1-B policies.
Using the data
You are free to copy, distribute, transmit, and adapt the spreadsheet, so long as you do not change the data in any way that introduces errors, credit Mother Jones/Reveal and link to our article, and inform me that you are using the data in your work. Thanks!