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A group of 1,030 Indian IT companies in the US has filed a lawsuit against US Citizenship and Immigration Services (USCIS) for unlawfully limiting the duration of H1-B visas.
In a 43-page lawsuit, ITServe Alliance, which represents over 1,000 IT companies, run mostly by Indian-Americans, has questioned whether USCIS even has the authority to limit how long professionals can work on an H1-B visa.
While the H1-B visa is supposed to be valid for at least three years, according to the complaint by the ITServe Alliance, USCIS has been giving out visas valid for as little as a day. By the time it is processed and given to the applicant, it is already expired, forcing them to apply again and pay an additional application fee.
“Non-discriminatory legal and business environment has been the reason on the rise of corporate America,” said Pareekh Jain, SVP and Managing Director India at HfS Research. “Some of USCIS decisions of short H1-B visas are surprising in that context. Lawsuits are a good way to highlight the issues faced and we hope it should pave way for comprehensive visa reform process which provides clarity and removes arbitrary or discriminatory decisions.”
Policy memo
On February 22, USCIS released a policy memorandum asserting that it possessed the authority to limit how long an H-1B petition is valid.
“USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and that the petitioner will maintain the requisite employer-employee relationship, as documented by contracts, statements of work, and other similar types of evidence,” the memo read.
The lawsuit disputes this authority assumed by USCIS and said that this authority is not in the statute, nor is it articulated in regulation. “This exercise of claimed authority results in H-1B approval periods as short as a few days.”
In one instance shared in the lawsuit, USCIS approved and mailed out an approval for an H-1B petition on August 29, 2018. However, the H-1B was only valid from June 15, 2018 to August 10, 2018, meaning the H-1B petition expired almost three weeks before it was mailed out to the employer.
Validity period
IT Serve Alliance has argued that the current USCIS regulations say that an H-1B petition can be approved for three years, or less if the employer requests it, while there is nothing in the regulation that says USCIS can set a period of validity of less than three years for other reasons.
The new lawsuit asks a district court to determine, among other things, if the immigration agency is exceeding its authority and violating the Administrative Procedure Act (APA) by setting these short validity periods for H-1B petitions.
The lawsuit also alleges that the itinerary requirement put forth by the USCIS is also unlawful. “The itinerary regulation was promulgated prior to the passing of the 1990 INA and has no applicability to the H-1B visa.The regulatory choices in the 1998 Proposed Rule were abrogated by statute, and never finalised,” the lawsuit states.
Large Indian IT services companies in the past two years have cut down on their visa applications by more than half, given the increase in visa fee and increased strunity of each, and every application causing delays in approvals.
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