• The H-1B petition was denied because the job offered to the applicant did not qualify as an H-1B specialty occupation
• The most sought-after visa has an annual numerical limit cap of 65,000 visas each fiscal year as mandated by the US Congress

A Silicon Valley-based IT company has filed a lawsuit against the US government for denying the most sought-after H-1B visa to a highly qualified Indian professional, terming the renunciation “arbitrary” and a “clear abuse of discretion”.

Xterra Solutions alleged in its lawsuit that the US Citizenship and Immigration Services (USCIS) improperly denied H-1B visa to Praharsh Chandra Sai Venkata Anisetty, 28, whom it had hired as a Business System Analyst.

The company’s H-1B petition on behalf of Anisetty was denied on the sole ground that the job offered to him did not qualify as an H-1B specialty occupation, the lawsuit said.

“The denial is not supported by substantial evidence in the record, is contrary to established legal precedent, and is arbitrary, capricious and constitutes a clear abuse of discretion,” the company alleged and urged the Northern District of California US District Court to set aside the USCIS order.

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.

The most sought-after visa has an annual numerical limit cap of 65,000 visas each fiscal year as mandated by the US Congress. The first 20,000 petitions filed on behalf of beneficiaries with a US masters degree or higher are exempt from the cap.

Anisetty holds a Bachelor’s degree in Engineering (Electronics and Communication Engineering) as well as a Master’s of Science degree in Information Technology and Management from the University of Texas at Dallas.

He currently holds valid H-4 dependent status through his wife, the principal beneficiary of an H-1B application.

From 2014 to 2016, Anisetty held valid F-1 non-immigrant status as a student enrolled in the information technology and management master’s program at Texas University.

Later, he also participated in Curricular Practical Training, an employment-training programme with an established academic curriculum in the form of cooperative education programmes offered by sponsoring employers through agreements with F-1 students’ universities.

The company asserted that Anisetty’s current position as a Business Systems Analyst meets one or more of the criteria for an H-1B specialty occupation.

“USCIS’s decision dated February 19, 2019 denying Xterra’s H-1B petition, filed on behalf of Anisetty, was arbitrary, capricious, an abuse of discretion, and not in accordance with the law,” the lawsuit said.

The USCIS gave no explanation as to why, despite Xterra’s significant evidentiary submissions in its request for evidence, documenting that Anisetty’s position as a Business Analyst met all four criteria for a specialty occupation, it denied Xterra’s petition to change Anisetty’s status to that of the principal beneficiary of an H-1B petition, it said.

The company alleged that the USCIS acted arbitrarily and capriciously in finding that the current position offered to the Indian professional did not meet criterion that “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position”.

Source : PTI

India on Thursday called upon the US to ensure a non-discriminatory and predictable approach to issuance of H-1B visas, largely availed of by Indian IT firms.

“I sought Secretary Pompeo’s support to nurture our people-to-people links,” External Affairs Minister Sushma Swaraj said while addressing the media after participating in the first ever 2+2 India-US Ministerial Dialogue along with Defence Minister Nirmala Sitharaman, US Secretary of State Mike Pompeo and Defense Secretary Jim Mattis.

“Specifically, I conveyed our expectation for a non-discriminatory and predictable approach to the H-1B visa regime, given its high impact on innovation, competitiveness and people-to-people partnership, all of which are a vital source of strength for our relationship,” Sushma Swaraj said.

In February, the US President Donald Trump came up with a new visa policy that makes the procedure for issuing H-1B visas tougher.

According to the new policy, the hiring company would have to prove that its H-1B employee at a third-party worksite has specific and non-qualifying speculative assignments in speciality occupation.

Sushma Swaraj said she mentioned to Pompeo that on the basis of the friendship between Trump and Prime Minister Narendra Modi, Indians believe that the US will not work against their interest.

“I have mentioned to him to maintain the trust of Indians,” she said.

​Washington: US Citizenship and Immigration Services (USCIS) director L Francis Cissna has said he would be happy if American law prohibited the replacement of an American by an H1B visa holder.

“I would really love it if Congress would pass a provision prohibiting American workers being replaced by H1B workers. I could draft it myself, probably right now, you know?” Cissna said in response to a recent query. Any immigration attorney will tell you it’s getting tougher to obtain an H1B visa or an extension of the visa. Extreme vetting of applications and a higher rejection rate are now the norm.

For visa applications (including for extensions) made after September 11, USCIS officials also have the power to reject outright applications in certain circumstances, such as when required evidence is not submitted at the first instance. Cissna’s remarks came at an “Immigration Newsmaker” event organised in Washington, DC, on August 15 by the Center for Immigration Studies (CIS), a think tank with a purported anti-immigration stance.

A transcript of the event was recently made public on the CIS website. Cissna’s statement sent ripples across the Indian diaspora. According to a USCIS report, during fiscal 2017, 75.6% of the total 3.65 lakh applicants granted H1B visas, including for continued employment, were born in India.

Cissna said immigration reform should be directed towards ensuring the most qualified people, who the US needs, should get the visas. “A simple fix, for example, just banning the ability of employers to fire American workers and replace them with H1Bs,” he said

In fact, this process has already begun. The past few years have seen a spike in requests for evidence (RFEs) by USCIS officials during processing of H1B applications.

Courtesy : Hans India

Multiple H-1B applications will lead to rejection of the petitions, a federal American agency has warned foreign workers, days ahead of the initiation of filing process for the non-immigrant visa, popular among Indian techies.

The US Citizenship and Immigration Services (USCIS) has indicated that it would intensify scrutiny of such applications.

The H-1B filing process begins from April 2 for the fiscal year 2019 starting October 1. “After notice, we will deny or revoke the approval of all H-1B cap-subject petitions filed for one beneficiary by ‘related entities’ unless there is a legitimate business need,” USCIS said.

H-1B petitioners who submit multiple cap-subject petitions on behalf of the same beneficiary undermine the integrity of the lottery process, it added.

The federal agency issued policy guidance related to H-1B petitions, clarifying how the term “related entities” applied to the bar on multiple H-1B filings.

“Related entities” include petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job, it said.

“Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary,” USCIS said, adding that it will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.

Noting that a single employer “may not file more than one cap-subject petition for the same beneficiary even if there is a legitimate business need”, it asserted that H-1B programme did not permit speculative employment.

It, however, recognised that occasionally an employer may extend the same beneficiary two or more job offers for distinct positions and therefore may have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien. The rule, however, precluded that practice if the beneficiary is subject to the cap.

USCIS recognised that allowing multiple filings by one employer on behalf of the same beneficiary could create a loophole for employers who seek to exploit the random selection process to the competitive disadvantage of other petitioners.

Such employers could file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the employment positions are in fact the same or only very slightly different.

Instead, USCIS explained that a petitioner could file one initial petition, and then if accepted under the cap, file an amended or new petition for concurrent employment.

The H-1B programme offers temporary US visas that allow companies to hire highly skilled foreign professionals working in areas with shortages of qualified American workers.

President-elect Donald Trump has said he would not allow Americans to be replaced by foreign workers, in an apparent reference to cases like that of Disney World and other American companies wherein people hired on H-1B visas, including Indians, displaced US workers.

“We will fight to protect every last American life,” Trump told thousands of his supporters in Iowa on Thursday as he referred to the cases of Disney world and other US companies.

“During the campaign I also spent time with American workers who were laid off and forced to train. The foreign workers brought in to replace them. We won’t let this happen anymore,” Trump vowed amidst cheers and applause from the audience.

“Can you believe that? You get laid off and then they won’t give you your severance pay unless you train the people that are replacing you.

I mean, that’s actually demeaning maybe more than anything else,” he said.

Disney World and two outsourcing companies have been slapped with a federal lawsuit by two of its former technology staff, alleging that they conspired to displace American workers with cheaper foreign labour brought to the US on H-1B visas, mostly from India.

The two employees – Leo Perrero and Dena Moore – were among 250 Disney tech workers laid off from their jobs at Walt Disney World in Orlando in January 2015. They have also dragged two IT companies HCL Inc and Cognizent Technologies into this class action lawsuit.

“You know the name of one of the companies that’s doing it. I’m going to be nice because we’re trying to get that company back. Don’t forget much harder when a company announced a year and a half ago – some of these companies, like Carrier, they announced long before I even knew I was going to be running for president,” Trump said.

On immigration, Trump reiterated that he will build the wall along the Mexico border.

“We will put an end to illegal immigration and stop the drugs from pouring into our country, the drugs are pouring into our country, poisoning our youth and plenty of other people,” he said.

“We will stop the drugs from pouring into our country. We will stop the drugs from poisoning our great and beautiful and loving youth. OK? We’ll do it,” he said, adding that the Trump administration will stop the violence that is “spilling across our border.

Courtesy PTINews