DHS Sued Over H-1B Visa Delays Amid Coronavirus Outbreak

By Hannah Albarazi
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Law360 (February 7, 2020, 8:11 PM EST) -- Health care staffing company MedPro has sued the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services, alleging an "untenable" delay in deciding more than 150 H-1B petitions for medical professionals that has further exacerbated a nationwide health care worker shortage, especially amid the threat of the new coronavirus.

In a complaint filed in D.C. federal court Thursday, Florida-based Management Health Systems LLC, which does business as MedPro, says there have been significant delays in processing H-1B visas for highly qualified, foreign-educated health care professionals whom MedPro seeks to staff at facilities across the U.S. These delays are harming its business, the U.S. health care industry and the American people, MedPro says.

"Our healthcare industry cannot serve its constituency — patients — without an adequate supply of highly skilled and qualified healthcare professionals," MedPro says in its complaint. "This is no more true than in times of health crisis, as we are experiencing now due to the threat of the coronavirus."

The new virus, a member of the coronavirus family that is a close cousin to the SARS and MERS viruses that caused outbreaks in the past, has been identified as the cause of an outbreak of respiratory illness first detected in Wuhan, China, late last year. The virus has since been confirmed in patients in the U.S.

MedPro is asking the D.C. federal court to compel immigration authorities to decide MedPro's 156 outstanding H-1B petitions within 15 days of the court entering a judgment in its favor, and is seeking a refund of the premium processing fees it has paid.

The actions of DHS, its acting secretary Chad Wolf, USCIS and its acting director Kenneth T. Cuccinelli are violating the Administrative Procedure Act and the Immigration and Nationality Act, according to MedPro.

MedPro says Congress created the H-1B visa to allow U.S. employers to temporarily employ foreign workers in specialty occupations, and that Congress also spells out that petitions for these visas should be processed within 30 days of filing.

USCIS has historically had "a solid track record" for timely adjudicating H-1B visa petitions, MedPro says, but that has changed over the last three years.

MedPro says that on April 1 it filed H-1B visa petitions for laboratory medical technologists, who are in steep demand in the U.S., and 156 of those petitions remain pending. MedPro alleges that it has been waiting for the government to decide the 156 H-1B petitions "for 311 days and counting."

The 156 lab techs had been scheduled to start working in the U.S. on Oct. 1, 2019, and the delay "is impairing the ability of MedPro's clients to efficiently and effectively meet the medical needs of individuals nationwide," according to the complaint.

The delay "has become untenable," MedPro says.

It says it tries hard to recruit health care professionals domestically but that "there are simply not enough domestic workers available" to meet the high demand.

The U.S. "suffers from a drastic shortage of medical laboratory professionals," MedPro says, adding that the delay has caused the country to lose out on highly skilled and qualified medical professionals.

The lawsuit comes amid a rise in USCIS denials of H-1B visas and follows a regulatory agenda released last year by the Trump administration revealing plans to change employment visa programs, including revising the criteria by which H-1B visa applicants are evaluated and the program's definition of a "specialty occupation."

USCIS declined Law360's request for comment Thursday, but a spokesperson for the agency told Law360 last month that "USCIS adjudicates all petitions, applications and requests fairly, efficiently, and effectively to determine if they meet all standards required under applicable laws and regulations."

Representatives for MedPro did not immediately respond to requests for comment Friday.

Management Health Systems LLC is represented by Andrew D. Prins and Gregory B. in den Berken of Latham & Watkins LLP.

Counsel information for the government could not immediately be determined Friday.

The case is Management Health Systems LLC v. U.S. Department of Homeland Security et al., case number 1:20-cv-00330, in the U.S. District Court for the District Of Columbia.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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District Of Columbia

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Richard J. Leon

Date Filed

February 06, 2020

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