Claiming 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 has alleged that the US Citizenship and Immigration Services (USCIS) is acting outside of its own regulations.
The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical/technical expertise.
Compete America complains of issues with H-1B visas
Coalition not happy with USCIS's current approach to H-1B adjudications
In a letter to Homeland Security and USCIS, the coalition, Compete America, said, "We've observed three changes in H-1B adjudication practices under the current administration that seem to permeate most of the increased H-1B adjudication inconsistencies."
Expressing concerns over legal issues regarding recent changes in adjudication standards, the coalition said USCIS's current approach to H-1B adjudications cannot be anticipated by statutory or regulatory text.
Lack of certainty, consistency wreaking havoc among nation's employers: Coalition
The coalition, in its letter dated November 1, said the changes leave employers with a 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.
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USCIS acting outside of its own regulations, controlling statute?
Compete America further alleged USCIS appears to be acting "outside of its own regulations and the controlling statute" by requiring petitioners to comply with its 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.
Coalition says members reported increase of REFs, NOIDs regarding H-1B
In its letter, Compete America said that its members, including Google, Facebook, and Microsoft, 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.
Changes aren't previewed in necessary regulations, says the coalition
The coalition said the reported shifts have been perplexing because the agency's changes in approach were unannounced and aren't previewed in the regulations governing a qualifying H-1B specialty occupation that've been in effect since 1991.
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, it said.
Compete America explains the reason behind its allegations against USCIS
Compete America further added, "Nothing in the statute or regulations suggests that USCIS could ever take the position that it per se excludes or disfavors entry-level jobs in an occupation, or young-professionals working in jobs in an occupation, as qualifying for H-1B specialty occupation approval."
Complaint: USCIS denied H-1B petitions for occupations having limited jobs
Further, employers have reported instances of USCIS denying an H-1B petition saying the degree held by the foreigner isn't within a single-field of acceptable study for an occupation.
There are also reports of denied H-1B petitions for occupations that may have limited instances of jobs where a bachelor's degree or higher isn't required, even when those occupations normally do require it, the coalition said.