US Inc rails against ‘dra­matic rise in H-1B visas held up’

Em­ploy­ers have no clar­ity about the US­CIS’ prac­tices and poli­cies, says Com­pete Amer­ica

The Hindu Business Line - - IT & TELECOM -

There has been a “dra­matic in­crease” in the num­ber of H-1B visas be­ing held up, a coali­tion of Amer­i­can em­ploy­ers rep­re­sent­ing top IT com­pa­nies such as Google, Face­book and Mi­crosoft has said and al­leged that the US im­mi­gra­tion agency was “act­ing out­side” of its own reg­u­la­tions.

“We have ob­served three changes in H-1B ad­ju­di­ca­tion prac­tices un­der the cur­rent ad­min­is­tra­tion that seem to per­me­ate most of the in­creased H-1B ad­ju­di­ca­tion in­con­sis­ten­cies ex­pe­ri­enced by em­ploy­ers,” Com­pete Amer­ica said in a let­ter to the Sec­re­tary of Home­land Se­cu­rity Kirst­jen Nielsen and Di­rec­tor of the United States Cit­i­zen­ship and Im­mi­gra­tion Ser­vices (US­CIS) Fran­cis Cissna.

Ex­press­ing con­cerns over le­gal is­sues re­gard­ing the re­cent changes in ad­ju­di­ca­tion stan­dards for H-1B non-im­mi­grant visa pe­ti­tions at US­CIS, the coali­tion — Com­pete Amer­ica — said the agency’s cur­rent ap­proach to H-1B ad­ju­di­ca­tions can­not be an­tic­i­pated by ei­ther the statu­tory or reg­u­la­tory text.

This leaves em­ploy­ers with a dis­rup­tive lack of clar­ity about the agency’s prac­tices, pro­ce­dures, and poli­cies.

This lack of cer­tainty and con­sis­tency wreaks havoc among the na­tion’s em­ploy­ers which are hir­ing high-skilled Amer­i­cans and for­eign-born pro­fes­sion­als, it said in the let­ter dated No­vem­ber 1.

Com­pete Amer­ica al­leged that the US­CIS ap­pears to be “act­ing out­side of its own reg­u­la­tions and the con­trol­ling statute” by re­quir­ing pe­ti­tion­ers to com­ply with the agency’s cur­rent view that a com­par­a­tively en­try-level job, and cor­re­spond­ing wage level, can­not be a spe­cial­ity oc­cu­pa­tion.

In its let­ter, Com­pete Amer­ica said that its mem­bers have re­ported “dra­matic in­crease in the is­suance of Re­quests for Ev­i­dence (RFEs) and de­nials re­gard­ing H-1B pe­ti­tions for the last 18 months”.

Re­cently they are ex­pe­ri­enc­ing There is an an­nual nu­mer­i­cal limit of 65,000 H-1B visas each fis­cal year, as man­dated by the US Congress

a sharp in­crease in the is­suance of No­tices of In­tent to Deny (NOIDs) and No­tices of In­tent to Re­voke (NOIRs) con­cern­ing H-1B pe­ti­tions.

The H-1B visa has an an­nual nu­mer­i­cal limit cap of 65,000 visas each fis­cal year as man­dated by the Congress. The first 20,000 pe­ti­tions filed on be­half of ben­e­fi­cia­ries with a US mas­ter’s de­gree

or higher are ex­empt from the cap.

As an H-1B non-im­mi­grant, the ap­pli­cant may be ad­mit­ted for a pe­riod of up to three years. The time pe­riod may be ex­tended, but gen­er­ally can­not go be­yond a to­tal of six years. “Th­ese re­ported shifts in agency ac­tion have been per­plex­ing to our coali­tion’s mem­bers,

es­pe­cially be­cause the agency’s changes in ap­proach were unan­nounced and un­ex­plained and are not pre­viewed in the reg­u­la­tions gov­ern­ing a qual­i­fy­ing H-1B spe­cialty oc­cu­pa­tion that have been in ef­fect since 1991,” Com­pete Amer­ica said.

Ac­cord­ing to Com­pete Amer­ica, the US­CIS has been deny­ing H-1B pe­ti­tions ex­clu­sively be­cause an en­try-level wage is ap­pli­ca­ble for the spe­cific po­si­tion, even though the oc­cu­pa­tion it­self is clearly a spe­cialty oc­cu­pa­tion.

“Noth­ing in the statute or reg­u­la­tions con­tem­plates or sug­gests, much less states, that the US­CIS could ever take the po­si­tion that it per se ex­cludes or dis­favours en­try-level jobs in an oc­cu­pa­tion, or young pro­fes­sion­als work­ing in jobs in an oc­cu­pa­tion, as qual­i­fy­ing for H-1B spe­cialty oc­cu­pa­tion ap­proval,” it as­serted.

Fur­ther, em­ploy­ers have re­ported re­peated in­stances of the US­CIS deny­ing an H-1B pe­ti­tion on the ba­sis that the de­gree held by the spon­sored for­eign pro­fes­sional is not within a sin­gle field of ac­cept­able study for an oc­cu­pa­tion.

Em­ploy­ers are also re­port­ing re­peated in­stances of the US­CIS deny­ing H-1B pe­ti­tions for oc­cu­pa­tions that may have some lim­ited in­stances of jobs where a bach­e­lor’s de­gree or higher is not re­quired, even when those oc­cu­pa­tions nor­mally do re­quire that level of ed­u­ca­tion for the ma­jor­ity of roles, as con­tem­plated by the statute, Com­pete Amer­ica said.

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