The lawsuit states that plaintiffs filed their petitions (applications) after October 1, 2020, as they were permitted to do so. It may be recalled that for the first time ever (for the fiscal year starting October 1, 2020 and ending on September 30, 2021), there was a ‘second lottery’.
In August last year, new H-1B cap visa selection notifications were sent to sponsoring employers, whose applications were not earlier selected.
Without any legal basis USCIS contends that October 1, is the only permissible start date of employment that plaintiffs could list on their H-1B applications, states the lawsuit. The plaintiffs point out that the actual start date could not be October 1. In fact, backdating the start date of the intended employment would be tantamount to misrepresentation.
“No statute, regulation or published instruction for Form I-129 authorizes USCIS to accept as ‘properly filed’ only those petitions with an intended employment start date of October 1, 2020,” they submit.
“Further, this new practice of requiring H-1B backdating diverts sharply from more than two decades of the normative practice in connection with H-1B applications. Historically, H-1B sponsors listed October 1 or any start date thereafter, so long as the date for commencement of H-1B employment was within six months of filing,” adds the lawsuit.
These US companies have sought relief from the US District Court (of Massachusetts), that USCIS should accept the improperly rejected H-1B applications. They have also sought that the court should declare that the rejection of the H-1B applications, solely on the basis that the intended employment start date is after October 1, 2020 should be treated as arbitrary, capricious and not in accordance with the law.