Valorem, an IT consulting company, petitioned to employ a software developer for three years in H-1B status as part of a project development team at its office. Initially, USCIS denied the petition, but later – after Valorem, represented by AILA member Susan Bond, filed suit – approved it for one year.
The Council’s Business Litigation Fellow, Leslie K. Dellon, became co-counsel in November 2014 after USCIS moved for summary judgment. Valorem claimed that it met the standard of proof for a three-year validity period based on the record evidence, while USCIS gave undue weight to three illustrative Statements of Work. Valorem emphasized the absurdity of USCIS’s position, which effectively requires a petitioner to provide proof of three years of contracts in order to receive a three-year validity period.
While the court concluded that USCIS’s approval of a one-year validity period was not arbitrary and capricious, there were positive aspects to the decision. The court recognized, as Valorem had maintained, that USCIS must apply the preponderance of the evidence standard.The court did not adopt or endorse USCIS’s position that a three-year validity period equals three-years-worth of contracts. However, the court decided that the beneficiary’s work in this case was project-dependent and what the court considered to be project-related information in the record supported USCIS’s decision to approve only one year.
