Washington, NOV 09:
Claiming that 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 like Google, Facebook and Microsoft has alleged that the US Citizenship and Immigration Services (USCIS) is acting outside of its own regulations.
The H1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.
“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 Francis Cissna Director, USCIS.
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 agency 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 specialty occupation.
The specific field of study requirement for a specialty occupation means the job must necessitate the completion of a single major or qualifying degree, and the requirement for an occupation to usually carry a degree prerequisite means a degree must always be needed.
In its letter, Compete America said that its members have reported dramatic increases in the issuance of Requests for Evidence (RFEs) and denials regarding H-1B petitions for the last 18 months. More recently they are experiencing a sharp increase in the issuance of Notices of Intent to Deny (NOIDs) and Notices of Intent to Revoke (NOIRs) concerning H-1B petitions. ”
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,” it said.
