H-1B visas set to get tougher as US moots stricter norms on ‘specialty occupation’

The American Dream may get more distant for Indian aspirants. In recent instances, officials of the United States Citizenship and Immigration Services (USCIS) were rejecting a number of H-1B applications, (including for extensions) on the grounds that the activity is not a ‘specialty occupation’. This barrier might be strengthened if a suggestion mooted in the fall agenda of the Trump government becomes a truth.

The proposal, titled ‘Strengthening the H-1B non-immigration visa classification program,’ signifies that the Department of Homeland Security (of which USCIS is a unit) will revise the definition of ‘specialty occupation’ to focus on acquiring the best and brightest international nationals by the use of the H-1B program. The definition of employment and employer-employee dating is also proposed to be revised and DHS will even propose further necessities to make sure employers pay appropriate wages to H-1B workers. The expected date for the policy alternate is August 2019.

According to the autumn agenda, the purpose of these proposed changes is to make sure that H-1B visas are awarded handiest to people who will be working in a role which meets the statutory definition of ‘specialty occupation’. Any such alternate in the rule might be contested in court (a regulation go well with has already been filed in a single case, the place USCIS denied the H-1B extension on the floor that it was no longer a specialty occupation).

An H-1B is a work visa for professional workers, in specialty occupations that most often require a bachelor’s degree or equivalent at least requirement. The generation sector, predominately hires H-1B workers, a significant chunk of whom are from India. To illustrate, during the 12-month period ended September 30, 2017, USCIS authorized three.65 lakh H-1B visa applications (including for visa extensions), of which 2.56 lakh or 70% went to Indians.

Leslie K Dellon, staff legal professional at American Immigration Council (AIC) advised TOI, “In the autumn regulatory agenda, the agency continues to record its proposal to ‘revise’ the definition. However, the Immigration and Nationality Act defines ‘specialty occupation’ so I imagine any definition alternate would require a brand new legislation and no longer an agency regulation.”

Similarly, Rajiv S Khanna, managing legal professional at Immigration.com mentioned it will be a herculean activity for DHS to check out and curtail a common-law definition of an employer-employee dating by way of an insignificant regulation. Setting new criteria for wages is also likely to be problematic as this can be a violation of Department of Labour rules, he mentioned.

American Immigration Council is a non-profit which matches to achieve justice and equity for immigrants under the United States regulations. According to Dellon, “From what we’ve seen, USCIS is denying more H-1B petitions on the floor that the activity is not in a specialty occupation. These come with circumstances the place the international national has been working in H-1B standing either in the similar activity or in a similar activity, that is in the similar occupational classification which USCIS now claims is not a specialty occupation.”

Khanna explained, “The problem with the USCIS interpretation of specialty occupation is that it is almost unattainable to comply with, in many areas of professional endeavour. For example, USCIS has been disregarding circumstances the place an MBA is required, pointing out that an MBA is not a ‘specialty occupation,’ because it is not some extent in a particular subject.”


“Many of the denials passed out by way of the USCIS seem to be pretextual relatively than meritorious. Where the Department of Labor‘s personal documentation (Occupational Outlook Handbook) states that a degree is required for a specific occupation, the USCIS tries to take the placement that the degree required is not in a particular subject or box of analysis,” added Khanna.


USCIS’ unreasonably slender interpretation affects quite a lot of occupations. “Notoriously they deny H-1B petitions for titles including programmer, techniques analyst, business analyst, marketplace analysis analyst, project supervisor, basic supervisor, operations supervisor, building supervisor, to call a few. This is right even in circumstances the place the salaries are in the best 5% of the United States activity marketplace,” Khanna advised TOI.


Law go well with filed for denial of H-1B extension

After USCIS denied an utility for extension of H-1B on the floor that a building supervisor's occupation was no longer a specialty occupation, Anubhav Shandilya moved court. Shandilya had served his employer organisation for six years and Balfour Beatty Construction had sought an extension to permit him to proceed to paintings. A regulation go well with was filed against USCIS in a district court on October 16. Leslie K Dellon, co-counsel to the go well with, explains: “We’re difficult USCIS’ failure to consider the employer’s proof that the activity is in a specialty occupation. We take care of that USCIS wrongly concluded that “engineering” is not a particular specialty.”


H-1B visas set to get tougher as US moots stricter norms on ‘specialty occupation’ H-1B visas set to get tougher as US moots stricter norms on ‘specialty occupation’ Reviewed by kailash soni on October 19, 2018 Rating: 5
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