A federal judge found that H-1B holders can take legal action if their visa is going to be taken away without sufficient notice due to their employer’s alleged fraud. According to a judge in the U.S. District Court for the Western District of Washington, an individual H-1B holder can take legal action to try and keep his visa. In this case, an H-1B visa holder is at risk of losing his visa because his former employer was found guilty of visa fraud that occurred 15 years prior.

In the matter, the H-1B holder states that USCIS did not provide enough notice that the government was planning to take away his visa and is essentially holding him accountable for his employer’s fraud. USCIS admits the fraud was not committed by the individual but by the president of the company. However, they still intend to rescind the individual’s previously approved H-1B visa.

USCIS made several changes to the H-1B lottery process for the FY2025 lottery to help eliminate fraud and abuse. Specifically, the changes target organizations who submit duplicate registrations for an individual worker to increase the odds of being selected. In this case, the employer who committed fraud is a third-party contracting company that places selected H-1B visa holders at a variety of companies to fulfill employment contracts. Additional updates proposed for the H-1B program include requiring contracting firms to complete site visits and provide greater review of third-party job requirements.

The H-1B holder argued that USCIS violated the Administrative Procedure Act because they did not provide him with the opportunity to respond. Furthermore, claims of fraud against the individual visa holder are not supported by the evidence.

Because the visa belongs to the employer, there are few legal options for employment visa holders. However, if the individual visa holder can be considered an affected party rather than an extension of the employer it will protect individuals who are not involved with the employer’s fraud.

We continue to monitor ongoing developments to U.S. immigration law. If you have questions about the H-1B visa, or any other U.S. immigration related issue, contact us. We work with our clients every step of the way.