Judges at a US district court recently gave contrary decisions in two separate but similar lawsuits, both challenging the denial of an H-1B visa. What construes ‘specialty occupation’ and eligibility for an H-1B, is currently a hot topic of discussion. Immigration specialists are calling this the tale of two cases — both involving Indian citizens who wanted to pursue their American dream.
Usha Sagarwala and Subhasree Chatterjee both faced rejection of their H-1B applications that were filed by their sponsoring employer. Sagarwala already held an H-1B but was changing jobs. This required that her new employer repeat the process of an H-1B approval. Chatterjee’s case, meanwhile, was of an initial H-1B application. In both instances, US Citizenship and Immigration Services (USCIS), which adjudicates H-1B applications, held the two job positions were not ‘specialty occupations’ and hence not eligible for an H-1B visa.
The H-1B job transfer application was for a ‘quality assurance (QA) analyst’, where Sagarwala would be placed at a third-party worksite. Chatterjee was undergoing her optional practical training (OPT) at LexisNexis. International students, hailing from the science, technology, engineering, mathematics (STEM), who have qualified from a US university are entitled to work, post-study, of up to three years under OPT. On OPT’s completion, the company wanted to hire her as a ‘data analyst’. When the H-1B applications were rejected, both parties pursued a lawsuit against USCIS. While Sagarwala failed, Chatterjee came up trumps.
The last few action plans of US President Trump, including the latest unveiled mid-May, have reiterated the plan to further tighten the definition of ‘specialty occupation’ so as to obtain the “best and brightest workers”. This is in furtherance of the hard-line approach under the president’s Buy-American, Hire American executive order. Immigration advocates say a change in definition will require congressional approval. Thus, for now, the existing definition continues.
Increase in number of H-1B visa denial
H-1B visas are an important mode for Indians to be able to work in the US. The tech sector is heavily dependent on these visas for its workforce, despite several large companies increasing the number of local (American) hires.
Nearly 75% of the aggregate H-1B visa applications for new jobs and visa extensions (for continued jobs) that were approved during fiscal 2017 (ending September 2017), were given to those born in India. While country-wise data of later years is not available, local hiring may have led to only a slight drop.