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IT Advocacy Group Sues Over Short Duration H-1B Visas

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By Lisa M. Schaffer, Esq. on October 17, 2018 2:36 PM

H-1B visas, used by US companies to bring technical non-immigrant foreign workers into the United States, are the topic of hot debate. This time, their shortened duration is at the center of a lawsuit filed by IT Service Alliance, an IT advocacy group representing more than 1,000 small IT companies, against the US Citizenship and Immigration Services (USCIS).

Plaintiffs claim that UCSIS is reaching beyond its power, without authority, when shortening visa lengths. These visas typically last three to six years; some are now issued for just a matter of days, and others are issued after the visa period has expired.

Authority to Shorten Visa Length Challenged

H-1B visas are relied upon by thousands of tech companies to hire tens of thousands of employees each year from countries like India and China. USCIS released a policy memo on February 22, 2018, stating it would be using its discretion to limit how long H-1B visas would last. They based their authority to create its own limits on both a January 1990 "itinerary rule," and a rule that was proposed back in 1998 but never adopted. IT Service Alliance claims these authorities don't exist. The "itinerary rule" predates H-1B visas, and therefore shouldn't apply to them.

And as for the 1998 Proposed Rule? Congress eventually adopted a contrary position, and specifically specifically granted power to the Department of Labor, whose regulations grant three-year approvals.

Immigration Agencies Now Pushing Limits of Authority

Immigration agencies like USCIS have been under fire during the Trump administration for surpassing their authority as regulatory agencies, and instead serving as judge, jury, and executioner. USCIS has partnered with ICE to try to deport immigrant spouses by creating marriage interview "traps." Attorney General Jeff Sessions has used his power as head of the Department of Justice to usurp unprecedented power over the Immigration Court System.

USCIS Self-Serving Fees

At issue, beyond fairness and legality, is cost. When companies receive an approved H-1B visa that is either expired or unduly limited in duration, it costs a great deal of time and money to amend the application and resubmit. Ironically, USCIS stands to make millions of dollars in re-submission fees alone. Sometimes applicants can't wait for re-submission, and ultimately pursue another opportunity.

If you feel like your company's H1-B visas have been arbitrarily shortened or denied, contact an immigration attorney. A well-trained legal advisor can listen to your facts, and apply them to current laws, to hopefully help get the outcome you seek.

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