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H-1B workers at companies whose petitions USCIS has stopped deciding keep asking whether they can sue on their own. Court records show they can, and one recently won. An active investigation of the employer is a harder problem.
Since our reporting on the H-1B and PERM freeze at Cognizant and Cloudera and the suspension of Microsoft and other large IT employers from PERM, the question we hear most is about a writ of mandamus. Attorneys report that USCIS is not deciding H-1B petitions filed by Infosys and is not deciding H-1B transfers to Microsoft, and that some of these cases have been sitting since the summer, when the Labor Department’s Inspector General opened its July 8 investigation. Workers want to know whether they can go to federal court to force a decision, and whether they can do it if their employer does not want to be part of the lawsuit.
Our view of the likely outcome has not changed: for most of these employees, the cases are unlikely to move until DHS finishes its investigation and the matter ends in charges, a settlement or a closed file. Then USCIS should begin deciding petitions on their merits. But because so many readers are weighing litigation, we reviewed how courts have handled delay suits brought by H-1B workers, including suits filed without the employer. A beneficiary acting alone faces three hurdles, in this order: standing, the investigation, and the length of the delay.
Hurdle one: can the worker sue without the employer?
Inside USCIS, the employer is the only party to an H-1B petition. Requests for evidence or Notice of Intent to Deny or Notice of Intent to Revoke go to the petitioner and only Petitioner can respond to them. Federal courts have generally treated a lawsuit differently. In Mantena v. Johnson, the Second Circuit held that the regulation limiting who may appeal inside the agency does not keep a beneficiary out of federal court. The American Immigration Council’s 2024 practice advisory on business immigration litigation reports that it found no decision denying standing to an H-1B beneficiary, while noting that reported H-1B standing cases are scarce.
The cases that exist favor the worker:
- Tenrec v. USCIS (D. Or. 2016). The court held that H-1B beneficiaries have constitutional standing and fall within the zone of interests of the H-1B statute, because approval gives them the right to live and work in the United States.
- Parcha v. Cuccinelli (E.D. Tex. Feb. 7, 2020). Judge Sean D. Jordan held that an H-1B worker and his family had standing based on lost wages from a revoked petition and the non-adjudication of a second employer’s pending petition.
- D. Utah, 2025. Magistrate Judge Daphne A. Oberg found that most of a group of workers had standing to challenge DHS’s revocation of seven H-1B petitions over their employers’ alleged fraud, Bloomberg Law reported, though the workers lost on the merits.
- Sepehri v. Mullin (N.D. Ind. 2026). The worker sued alone, and the government did not contest his standing at all. More on this case below.
Standing does not solve the practical problem. The employer still controls the petition. If USCIS responds to a lawsuit with a request for evidence, only the employer can supply its payroll, worksite and client records. An employer that does not want the case litigated can also withdraw the petition, which would end the lawsuit. Workers whose employers have told them not to hire outside counsel should read their employment agreements and get individual advice before filing anything; we take no position on those internal policies.
The 2026 cases: workers suing from inside the United States
A search of CourtListener’s archive of federal court filings since May 2026 turned up several suits in which an H-1B worker, not the employer, sued over a pending I-129 petition.
Sepehri v. Mullin, No. 1:26-cv-00239 (N.D. Ind.). Pedram Sepehri, an Iranian national on H-1B status since 2020, works as a product engineer for Linamar in Auburn, Indiana. Linamar filed an extension petition on April 18, 2025. USCIS issued a request for evidence in January 2026, received the response in March, and then held the case under its December 2025 and January 2026 policy memos freezing benefits for nationals of travel-ban countries. His 240-day work authorization ran out on May 28, 2026, and he was put on unpaid leave. He sued alone on May 20. On June 2, Chief Judge Holly A. Brady granted a preliminary injunction ordering USCIS to decide the petition by June 17, followed by a written opinion on June 9. She found that 13 months without a decision, against a 3.5-month median processing time for I-129 petitions, was likely unreasonable; that losing the legal ability to work at all is irreparable harm; and that the relief was narrow because he asked only for a decision, not an approval.
Abubakar v. Mullin, No. 1:26-cv-02142 (D. Md.). An H-1B worker, his spouse and their child, without the employer, sued on May 29, 2026 over the employer’s pending H-1B extension petition and moved for a preliminary injunction on June 23. The parties filed a stipulated dismissal six days later, and Judge Matthew J. Maddox closed the case on July 2. Quick dismissals like this usually follow a decision by USCIS, but the public docket does not confirm the outcome.
Enaganti v. Mullin, No. 4:26-cv-01618 (E.D. Mo.). Filed Oct. 8, 2026 by a worker representing himself. Among other claims, it says USCIS has not decided his spouse’s H-1B extension petition even after it was upgraded to premium processing. It is pending.
These cases share the facts that help a worker inside the country: valid status, a dated filing, a clock that matters (the 240-day rule), and concrete harm such as unpaid leave or a lost job.
Hurdle two: the investigation
This is where the current situation differs sharply from Sepehri. That case, and most of the 2026 wins, involved a published, nationality-based hold. On June 5, 2026, a federal court in Rhode Island vacated those memos in Dorcas International Institute v. USCIS, and on Aug. 14 the First Circuit allowed only a separate re-review policy to resume while the government appeals, leaving the benefits hold vacated. Courts were skeptical of a blanket hold that USCIS could not tie to the individual applicant.
The Infosys, Cognizant and Microsoft holds rest on something different: an investigation of the petitioner. USCIS has a regulation for exactly that. Under 8 C.F.R. 103.2(b)(18), the agency may withhold adjudication when it determines an investigation has been undertaken on a matter relating to eligibility or discretion, for six months at a time, with higher-level approval needed to keep holding a case after a year. As we noted in September, a separate rule, 8 C.F.R. 106.4(f), lets USCIS hold premium processing cases tied to a fraud investigation without refunding the fee.
How courts treat that regulation depends on whether the government can prove it followed it:
- When the government documents the hold, workers usually lose. In Mustafa v. Pasquerell (W.D. Tex. 2006), relief was denied after a district director submitted an affidavit that the case was being withheld under 103.2(b)(18). In Qiu v. Chertoff (D.N.J. 2007), the court dismissed a suit over a green card application pending almost three years for background checks, citing the regulation. A New Jersey court relied on the same reasoning in Kale v. Mayorkas (2021).
- When it cannot, courts are less forgiving. In Elmalky v. Upchurch (N.D. Tex. Mar. 28, 2007), Judge Jane J. Boyle refused to dismiss because there was no evidence USCIS had actually acted under 103.2(b)(18), and found that a nearly three-year wait was plausibly unreasonable. In Saghafi v. Edlow (D. Md. Apr. 24, 2026), the court said the regulation is not blanket authority to withhold adjudication indefinitely and found no evidence that USCIS had opened the kind of investigation it describes.
We did not find a published decision squarely on a hold placed on a worker’s petition because the employer, not the worker, is under investigation. The closest is Parcha. The owners of the worker’s former H-1B employer had been indicted in a visa fraud scheme, and one pleaded guilty. The court found standing but declined to find unreasonable delay, in part because an injunction in related litigation, Sakthivel v. Cuccinelli (D.S.C.), constrained what USCIS could do. Expect the U.S. Attorney’s office to argue that an employer-wide investigation relates directly to the petition’s eligibility, since the petitioner’s attestations about wages, worksites and job duties are what is being examined. A worker’s best response is to make the government prove a real, documented 103.2(b)(18) hold for his own case, and to show that his position and pay raise none of the issues under investigation.
One more threshold issue: three federal appeals courts have held that the law bars suits challenging USCIS hold policies on green card applications, as we reported in October. Those rulings rest on the discretion Congress gave over adjustment of status. H-1B petitions are governed by a different statute, and in Sepehri the court found it had jurisdiction, but government lawyers can be expected to try a version of that argument.
Hurdle three: how long is too long?
Courts weigh delay under the six TRAC factors: the length and reasons for the wait, any timetable from Congress, the stakes for human welfare, the effect of jumping one case ahead of others, the harm to the applicant, and, without requiring it, any bad faith. There is no fixed number, and results vary widely by court:
- 13 months, unreasonable: Sepehri (N.D. Ind. 2026), measured against a 3.5-month median and a hold the government could not justify.
- 18 months, reasonable: Sharma v. Rubio (D.D.C. July 10, 2026), an H-1B visa stuck at a consulate.
- 28 months, reasonable: Sluev v. Rubio (D.D.C. Oct. 22, 2026), the F-1 case we covered in October, where Judge Amit P. Mehta noted that delays of three to five years are often found reasonable.
- Almost three years, plausibly unreasonable: Elmalky (N.D. Tex. 2007).
Congress’s statement that immigration benefits should be decided within 180 days, 8 U.S.C. 1571(b), helps but does not bind; the D.C. Circuit treats it as aspirational. For an H-1B worker inside the country, the strongest facts are a short normal processing time, premium processing that was paid for or refused, and an approaching or expired 240-day work authorization. Those were decisive in Sepehri. A worker whose employer has moved him onto a protective filing or a new employer’s petition has weaker harm.
Filing from abroad: stronger or weaker?
Readers ask whether a worker outside the country with an approved petition has a better case. The record suggests the opposite. Once USCIS approves the petition, the delay is at the State Department, and claims against DHS become moot, as a D.C. court held in Oystacher v. Rubio (July 10, 2026), according to a law firm that tracks these rulings. Consular cases also run into the government’s argument against line-jumping, which carried the day in Sharma and Sluev, and several recent H-1B visa suits filed elsewhere, including Tian v. U.S. Department of State and Wang v. U.S. Department of State, have been transferred to the D.C. federal court, where waits of two years or more are routinely upheld. A worker still abroad whose petition is pending at USCIS faces a different problem: the AIC advisory notes at least one decision finding that a beneficiary outside the United States had no protected interest in an L-1A petition, because only the employer did. Workers should also know that leaving the United States while an extension of stay is pending generally abandons the extension request, turning a USCIS case into a consular one. For employees of these companies, our September article predicted that visa stamping is likely to slow as well.
What a win would and would not get you
- A decision, not an approval. A court in these cases can order USCIS only to decide, as the Sepehri court did. A decision during an investigation could be a request for evidence, a notice of intent to deny or a denial.
- The employer still matters. An RFE on worksites, end clients, wage level or the occupational classification of the job has to be answered by the employer, and the pending prevailing wage rule could make wage-level questions harder.
- Speed varies. Many suits end with USCIS deciding the case before a judge rules, as Abubakar suggests. Others take months.
Dates and decisions to watch
- Six-month mark: If USCIS is relying on 8 C.F.R. 103.2(b)(18), holds that began in the summer reach the regulation’s first six-month review this winter, and the one-year mark, when higher-level approval is required, in mid-2027.
- Enaganti v. Mullin: The government’s response in the Missouri case.
- Dorcas appeal: The First Circuit’s ruling on the vacated hold policies, No. 26-1703.
- The investigations: Any charges, settlements or Labor Department findings involving the named employers, which would likely restart adjudication.
This article is for general information and is not legal advice.
Sources
- Sepehri v. Mullin, No. 1:26-cv-00239 (N.D. Ind. June 9, 2026), Opinion and Order, ECF No. 16, via CourtListener
- Abubakar v. Mullin, No. 1:26-cv-02142 (D. Md.), docket, via CourtListener
- Enaganti v. Mullin, No. 4:26-cv-01618 (E.D. Mo.), docket, via CourtListener
- Parcha v. Cuccinelli, No. 4:20-cv-00015 (E.D. Tex. Feb. 7, 2020), Justia
- H-1B Visa Holders Lose Bid to Show Work Status Illegally Revoked, Bloomberg Law, Sept. 17, 2025
- Litigation for Business Immigration Practitioners (2024), American Immigration Council
- Does a Beneficiary Have Standing to Challenge a Petition Denial in Federal Court?, National Law Review (on Mantena v. Johnson)
- Elmalky v. Upchurch, No. 3:06-cv-2359-B (N.D. Tex. Mar. 28, 2007), GovInfo
- Saghafi v. Edlow, No. 26-100 (D. Md. Apr. 24, 2026), CaseMine
- Khanna v. Mayorkas / Peddi v. Mayorkas (D.N.J. June 25, 2021), discussing Qiu v. Chertoff, 486 F. Supp. 2d 412 (D.N.J. 2007), CourtListener
- Kale v. Mayorkas, No. 3:21-cv-08095 (D.N.J. 2021), Justia
- USCIS Hold and Review Policy Update (Dorcas appeal status), CLINIC
- H-1B Visa Dad Stuck Abroad Told 18 Month Delay Is Reasonable, Newsweek, July 13, 2026
- Mandamus Case Law Updates (Oystacher v. Rubio), mandamus.com
- Sluev v. Rubio, No. 25-cv-899 (D.D.C. Oct. 22, 2026), GovInfo
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