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Santander Consumer Sues Over H-1B Denial for Senior Analyst (1)

Nov. 18, 2019, 9:25 PMUpdated: Nov. 25, 2019, 6:49 PM

Santander Consumer USA Inc. is the latest company to take the federal government to court over the denial of a coveted H-1B visa, filing a complaint Nov. 18 in federal district court in Washington.

The lawsuit by the finance company, which provides vehicle loans to buyers at more than 14,000 Chrysler, Ford, General Motors, and Toyota dealerships across the U.S., asserts that U.S. Citizenship and Immigration Services wrongly determined that the position of “Senior Analyst, Credit Risk” wasn’t a “specialty occupation” as required for the visa despite requiring a master’s degree in most instances.

Businesses increasingly have been suing the Trump administration in response to its crackdown on the H-1B visa program, the only visa to be mentioned specifically by name in President Donald Trump’s Buy American and Hire American executive order. H-1B denial rates have gone from 4.3% in fiscal year 2015 to 16.1% in FY 2019, as of June 30, 2019, according to USCIS data.

The arguments Santander made in its complaint echo those of other business immigration attorneys, who say the USCIS’s reasons for denying H-1B visas go against the intent of the Immigration and Nationality Act and Homeland Security Department regulations.

For example, the company says the USCIS ignored evidence from the Finance Credit and International Business Association about the nature of the job, misread the Labor Department’s Occupational Outlook Handbook’s description of the position’s degree requirements, used “boilerplate” language in the denial, and essentially required Santander to prove qualification for the visa above and beyond the “preponderance of the evidence” standard in the law.

The agency also wrongly determined that Santander’s plan to pay an entry-level wage means the job isn’t actually a specialty occupation, the company says.

Causes of Action: Violations of the Administrative Procedure Act, the Immigration and Nationality Act, and implementing regulations.

Relief: Assertion of court jurisdiction, declaration that the petition decision was unlawful, set aside of the decision, remand to the USCIS with instructions to approve the visa petition, attorneys’ fees and costs.

Response: “As a matter of practice, USCIS does not comment on pending litigation,” an agency spokesman said Nov. 18.

Attorneys: Clark Hill is representing Santander.

The case is Santander Consumer USA, Inc. v. U.S. Citizenship & Immigration Servs., D.D.C., No. 1:19-cv-03471, complaint filed 11/18/19.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com