IT service firms get H-1B relief in US court UU.

Lubna Kably | TNN

Mumbai: In what is considered a great victory for the IT consulting and services sector, a US district. UU. It revoked Tuesday the highly restrictive policies issued by the US Citizenship and Immigration Services. UU. ().

These policies, applied through the issuance of memoranda, generate an onerous burden of proof (RFE or requests for evidence) and a documentation requirement for companies that locate their employers at third-party customer sites. In addition to fueling the denial of visa applications, it also caused delays in the processing of H-1B visa applications. H-1B is a popular work visa held by the Indian diaspora working in the technology sector in the United States. Sponsoring employers in the sector faced denials not only in the case of new H-1B applications filed for future employees, but also in cases of visa extensions for existing employees.

Judge Rosemary M Collyer has deemed invalid the policy note issued by the USCIS in February 2018, which imposed burdensome requirements on IT service companies. It has also maintained as invalid a policy memorandum dating back to 2010 (called Memo Neufeld), which had created a new definition of employer-employee relations. In short, these companies, for now, won't have to meet the burdensome requirement of providing detailed customer contracts and employee itineraries assigned to customer sites.

IT service companies had also faced another challenge: the tenure of assigned H-1B visas was being reduced. In some cases, it was only for a few weeks or days, as opposed to the allowed three-year period.

The order was approved in the case of a large coalition of IT service companies in the United States and several of its member companies. Judge Collyer also held that if the USCIS wants to grant H-1B approvals for periods less than the requested three years (or implicitly the requested period), it must articulate the specific reasons for the shorter duration. TOI had covered the petition filed by the alliance and its member companies (many of which are administered by American Indians) in its May 15, 2019 issue.

In response to the order, ITServe Alliance National President (by 2020) Amar Vanda said: “A decision like this has been long overdue. Finally, the court system agrees with employers that USCIS has been off limits for a long time.

Nasscom Vice President (World Trade Development) Shivendra Singh said: “We welcome the ruling. The slowdown in visa processing for IT consulting firms is a major concern. The judge has indicated that he exceeded the law in the formal ruling. Between 2015-19, rejection rates shot up from 6% to 24% and, for some individual companies, it rose to 50%. The key issue here is to address the skills gap. And a short-term visa is used to fill that critical skills gap that caters to 75% of companies. And if the process slows down, it nullifies the entire goal.

Speaking to TOI, Cyrus Mehta, founder of a New York-based immigration law firm, said: The decision applies common sense and eliminates the senseless rules the government has imposed on employers with the aim of killing this industry. Even H-1B workers will benefit as they can have more stability and enjoy predictability when requesting H-1B extensions.

Arlington-based Rajiv S Khanna, managing attorney at Immigration.com, said: The order states that the USCIS must not administer justice through random policy memoranda and, if it wishes to change the regulations, do so through a process. formal. In fact, USCIS appears to have been illegally targeting the IT services sector.

ITServe Advisory Director Kishore Khandavallim added: Instead of implementing the rule of law, the USCIS has resorted to random rule making through internal memoranda. Game over and checkmate! The USCIS had required the assignment of daily duties to demonstrate that an employer-employee relationship existed. This led to challenges in which an employer assigned their staff to work on projects at the client sites. The court's decision now removes this obstacle. “Under the regulations, an employer should not be required to demonstrate control. Any one of these factors is enough: the ability to hire, pay, fire, supervise or control the employee's work, Khanna explained. In recent years, the USCIS has rejected several H-1B petitions or even visa extensions for the same job, claiming that the occupation is not a specialized occupation. There are indications in this decision that the court is not buying the USCIS restrictive interpretation of specialized occupation. The USCIS is likely to lose many more cases on this issue, added Khanna.

A recent analysis of the National Foundation for America Policy (NFAP) showed that the rejection rates of many IT service companies for new H-1B requests had increased from approximately 2% in fiscal year 2015 to over 30% in fiscal year 2019. Both IT services Companies that were Indian multinationals and contract tech workers and India-based companies suffered from this high denial rate.

The Trump administration may challenge this order in a higher court, but immigration experts believe that the IT services sector is on a solid foundation. Mehta summarized by saying: This is a significant victory as USCIS can no longer deny cases based on the alleged lack of an employer-employee relationship, or the lack of a specific contract with the end customer, or based on speculative employment. due to the lack of a precise itinerary or schedule. This victory will benefit IT consulting and services companies that have been the subject of all sorts of arbitrary denials of H-1B applications when they located workers with third-party clients, which is a legitimate business model and benefits US companies. .

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