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 have said, alleging that the US Citizenship and Immigration Services (USCIS) is acting outside of its own regulations.
US technology companies depend on the H1B visa to employ tens of thousands of foreign workers each year from countries such as 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, reported Press Trust of India.
This leaves employers with a lack of clarity about the agency’s practices, procedures, and policies.
Compete America has also 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 has been in effect since 1991,” it said.
According to Compete America, 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 fewer states, that 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.