Washington: 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 speciality 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 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.
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 less 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.
Further, employers have reported repeated instances of 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 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.
Donald Trump’s response
The Donald Trump administration wants to make changes in the existing H-1B provisions for it to play a better role in attracting highly skilled foreign workers as opposed to the what it has now evolved into an “outsourcing” role, the White House said Thursday.
“The president’s overall instinct – and he said this publicly a number of times – he wants to find ways to make sure that people who graduate in a highly skilled area like technology stay in the country. He finds that a very positive part of the overall immigration,” White House Deputy Chief of Staff for Policy Coordination Chris Liddell told a Washington audience on Thursday.
During the Washington Post’s live discussion on new technology, when asked about the president’s thoughts on H1B immigration, Liddell said, “He (Trump) has talked about merit immigration, clearly that (H-1B) fits in merit immigration.”
At the same time, he acknowledged that legislatively, the issue might get caught up in a border discussion.
A former executive at Microsoft and General Motors, Liddell is tasked with overseeing and coordinating President Trump’s policy process.
“To the extent that we can from a regulatory point of view rather than a legislative point of view, because the H-1B system to a large extent is governed by legislation – but to the extent that we can modify the regulatory point of view to promote it to be more highly skilled as opposed to outsourcing roles, there’s 1,20,000 H-1Bs. So it’s quite a big pool,” the White House official said.
“Traditionally, unfortunately they have gone to lower-skilled outsourcing types of jobs,” Liddell said.
The Trump administration, he said, would love to find ways to change that as more people are coming out with PhDs in the tech sector.
“So the president is 100 per cent aligned with that. We’ll try and do it as much as we can by regulatory; if it can be done legislatively as well in some way that would as part of a merit-based system, that would be fantastic,” Liddell said.
The top White House official emphasised that there is need to carry on reforms in H-1B to keep more talented graduates in this country.
This is an incredibly constructive part of the immigration debate, which, unfortunately doesn’t get a lot of focus, he said.
Liddell said President Trump has repeatedly spoken about merit-based reform as part of the immigration platform. The Silicon Valley and the tech industry should welcome that as a concept, he said.
“Relatively, as a country, a very small proportion of the people who come in as legal immigrants do it on a merit-based system relative to any other country I know, he said.
“So promoting the concept of merit-based immigration, which clearly would be at least partially orientated towards the tech sector, I would think that there should be a high degree of alignment on,” Liddell said.