A Washington DC-based federal judge has asked the United States Citizenship and Immigration Services(USCIS) to explain about the discrepancy in visa denials for skilled foreign workers during a case hearing on Thursday, May 9.
A complaint filed by ITServe Alliance along with dozens of other IT service companies against L. Francis Cissna, Director of the United States Citizenship and Immigration Services (USCIS) has alleged that the agency is trying to end the information technology consulting (“IT Consulting”) business model.
The ITServe Alliance is a non-profit organization of over 1,200 IT service companies. This past October they filed the complaint against the agency after seeing a significant rise in the number of Request for Evidence (RFE)s, delays in the issuance of visa, and above all, third-party H-1B placements.
However, finding no respite and seeing its impact on their businesses, other IT companies followed suit according to ITServe Alliance president, Gopi Kandukuri.
Kandukuri told indica, “There are more than 120 litigations filed in the last three-four months. All by individual IT consulting companies.”
He said, “They [the IT companies] are all members of ITServe. They all have filed the litigation in the same court in Washington DC. This got the judges attention.”
So the court decided to consolidate the cases and came to the conclusion that every case is related to “Specialty Occupation.”
In November 1990 Congress created the H-1B visa and split enforcement between the Department of Labor (DOL) and the United States Citizenship and Immigration Service. According to statute, the H-1B visa is available to United States employers seeking to hire and employ foreign professionals in specialty occupations.
“The main [rationale] behind the case is to address the same H-1B approvals, short-term approvals, and employment-employee relationship and denials. On February 22, 2018, the agency [USCIS] issued a new memo entitled “Contracts and Itineraries.” The policy memorandum imposed numerous new requirements on companies petitioning for H-1B workers and requirements for H-1B Petitions “involving third-party worksites.”
When asked with so many companies filing litigation, is this a kind of class action lawsuit Kandukuri said that it is not a class action, but this is almost like a class action and they have compiled all the cases under one hearing.
And Judge Rosemary M. Collyer, during the motion hearing on Thursday showed skepticism on the rise in denials and has asked USCIS to submit its supplemental briefing by May 23.
The court documents show an increase in the percentage of RFEs sent on initial petitions from an average of 35 percent in FY 2015-2017 to 45.6 percent in FY 2018, and 51 percent so far in 2019.
The IT service companies have alleged that the approval of H-1B visas has dropped from an average of 94 percent in FY 2015-2017 to 84.5 percent in FY 2018 and 75.4 percent so far in FY 2019.
Sharing his thoughts on the case Kandukuri said, “It is increasing and it’s particularly Indian IT consulting companies that are attacked.”
“Because of the nature of the job we end up moving to multiple locations,” Kandukuri said referring to the sending employees to the third-party location.
“There was an internal memo and so they (USCIS) has started taking the initiative. But the demand [of work] has increased at the client location as well.”
“So where is the hitch,” Kandukuri said explaining, “The nature of the job.. the H-1B is temporary and short term, it’s unfortunate we keep getting denials because of the short term.”
He alleged that big corporate IT companies are getting much better approval than Indian origin staffing companies when filing for H-1B they get a denial.
When asked on how they prove that, Kandukuri said [the data] was published in the USCIS portal, they gave the details of the number of H-1B filers and the number of denials.
According to the court document, the agency disclosed data on the top 30 H-1B filers for the fiscal year 2018.
It shows the increase in H-1B denials has not been felt equally across the board. The statistics display the disparity in adjudications between direct employers and IT consulting firms.
It shows that a large number of IT consulting companies on the list received denial rates of 32 percent whereas companies in the agency’s preferred tier of employers received denials ranging in the 2 percent.
ITServe Alliance also has alleged that the agency issues RFEs on issues exclusively targeted toward IT consulting employers. Simply said, the agency is creating new legislative rules through informal adjudications and policy memos.
Kandukuri believes that this current administration has taken the hardline against IT Consulting firms, “It’s like harassment.”