US Immigration Body Sued Over Shorter H-1B Visa Duration




A US-based trade association has recently filed a lawsuit in a US district court after the recent policy changes were introduced by US Citizenship and Immigration Services (USCIS), which have resulted in grant of H-1B visas for a few days or months as opposed to the typically requested three-year period. In some cases, notices of approval were sent after the approved visa-tenure had expired.

ITServe Alliance, a non-profit trade association of over a thousand companies in the IT service sector, in its lawsuit petition filed on October 11, points out that US laws prescribe a three-year duration for an H-1B visa, unless the sponsoring employer requests a lesser period of time.

The visa can be extended for another three-year period, the cap is of six-years. Only in some cases, such as for those awaiting a green card (permanent residency), stay in the US is permitted beyond the six years.

In its lawsuit petition, ITServe Alliance contends that USCIS does not have the authority to shorten the duration of the H-1B visas. A copy of the lawsuit petition shows that in one instance, the approved period of the visa was from September 17-29 (or just 12 days). Other visas granted for a very short time were for 28 days and 54 days.

There were several instances where approval notices bore a date post-expiry of the approved period. To illustrate, the approved period was June 15, 2018 up to August 10, 2018 (which works out to 56 days) and the approval notice date was August 29, after expiry of this period.

The genesis of this new development, of granting shorter tenure visas, largely stems from the policy clarifications issued by USCIS in its memorandum of February 22. The memorandum covered instances of both initial H-1B requests and extension requests, if the employees were to be placed at third-party (or customer) work sites, which is the typical business practice adopted by IT Service companies.

ITServe Alliance had earlier filed a lawsuit against USCIS’ decision to debar STEM students who were undergoing optional practical training from being placed at third party sites.