Over the last few years, the process for obtaining an H-1B “specialty occupation” visa has become more challenging and less certain. The Trump administration has engaged in several policies that have reduced or eliminated eligibility for H-1Bs. Now, two judges have invalidated those policies.
Court: Engineering is a specialty occupation
In the first case, the U.S. Citizenship and Immigration Services (USCIS) rejected an H1-B position for a quality engineer position because the company required the worker to possess “a Bachelor’s degree or higher in Mechanical Engineering, Computer Science or a related technical or engineering field (or the equivalent).”
Because the position could be filled by an individual with more than one type of degree, the USCIS said that it could not be considered a “specialty occupation.”
The judge ruled that this policy essentially required H1-B visa applicants to have a degree in a sub-specialty, because engineering is already a specialty degree. Since the Immigration and Naturalization Act (INA) only requires the position to require a specialty degree, the USCIS’s policy was contrary to established law.
Court: USCIS can’t enforce unofficial memos
According to Forbes, denial rates for H1-B visa petitions jumped from around 2% in fiscal year 2015 to over 30% during the Trump administration, especially for IT services companies.
The USCIS had denied visas for some IT professionals and curtailed the length of the visa for others — in one case limiting the visa to a single day. Basically, the agency argued that companies that supply other businesses with services are not legally employers for the purpose of the INA. It was also requiring such companies to prove they would provide ongoing work for all H-1B visa holders.
The judge found that memos supporting these positions were contrary to established law and could not be enforced without going through the usual process for issuing official regulations.
The judge also ruled that the USCIS may be able to shorten the length of an H-1B visa from the usual three years, but that it must provide specific legal reasoning for its decision.
Moreover, the judge found that Congress had specifically authorized business services companies to hire H-1B visa holders without proof of specific employment prospects. Congress passed a statute allowing such employers to place H-1B visa holders on “nonproductive” status as long as they are still paid.
“A decision like this has been long overdue, we finally have the judicial system agreeing with the employers that USCIS has been out of bounds for a long time,” said one of the plaintiff employers.
For help with your H-1B visa needs, contact Yew Immigration Law Group. We have years of experience helping people live and work in the U.S.