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H-1B Visa Duration - Lawsuit Challenges USCIS

ITServe Alliance filed a lawsuit with a federal court in October 2018 challenging the authority of United States Citizenship and Immigration Services (USCIS) to limit the duration of a H-1B visa. An advocacy group, ITServe Alliance represents small IT companies (mostly Indian-American). The lawsuit is because USCIS has issued visas with durations of lesser than 3 years.

An H-1B visa, a nonimmigrant visa that allows foreign workers to work in the U.S. in specialty occupations, is usually granted for a period of three to six years. Any lesser duration is granted only on the specific request of the employer.

USCIS claims it has the authority to decide the duration of the visa and has been issuing visas for a less as a few days instead of a minimum of three years. There have been instances where the visa approval was mailed after it had expired. The lawsuit said, “These petitions are often valid for only months or days at a time, and some cases are expired by the time the approval is received,” it said.

Visas have also been issued for 6 months, which means as soon as the company has completed the process of filing the petition, it has to turn around and get started with applying for extensions.

Though there have been prior cases of visas being approved for short periods, the issue came into the limelight when USCIS released a memorandum on February 22, 2018, which stated that the USCIS has the authority to limit the period for which a H-1B visa is valid.

The memo stated, “While an H-1B petition may be approved for up to three years USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and that the petitioner will maintain the requisite employer-employee relationship, as documented by contracts, statements of work, and other similar types of evidence.”

Gopi Kandukuri, ITServe’s national president for 2018 said, “The USCIS has been making arbitrary rules and memos for over eight years, it’s our top priority to set things right and hold USCIS accountable to follow the regulations set by the United States Congress.”

“The new battlefield for us is the federal courthouse and not USCIS service centers,” he added.

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Immigration law can be complicated and this article does not exhaust all the circumstances surrounding the H-1B visa. If you have any questions regarding this matter, please do not hesitate to contact our office.

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