Lawsuit Challenges USCIS’ Authority to Limit Duration of H-1B Visas

United States Citizenship and Immigration Services (USCIS) has asserted its authority to dictate limitations on the lengths of H-1B visa durations, often resulting in surprisingly short visa approvals. These exceptionally brief durations, sometimes so short that they expire before the employers can even receive them, have led to a lawsuit questioning whether the agency actually has the authority it wields.

The effects of USCIS’ policy on employers is staggering. Many employers are finding the H-1B application process to be an endless loop, in which extension petitions are filed and as soon as they are approved, the employers have to file for another extension because it has already expired. The recurring legal fees required each time an extension is filed, combined with the inherent uncertainty surrounding an employee’s indefinite work authorization make running a business incredibly difficult.

In its defense, USCIS cites regulations which authorize an H-1B petition’s approval for 3 years or shorter if requested by the employer, but there is no restriction preventing USCIS from justifying a period of validity to be established at less than 3 years for its own reasons.

Though there are a handful of examples of short approval periods, USCIS began exercising this authority with greater frequency beginning in February 2018, after a memo released by the agency stated, ““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.” Somewhat ironically, the Trump administration, which seemingly prides itself upon its deregulation of federal authority has spearheaded the federal agency’s authoritarian regulatory practices.

For more information, view the full article from Forbes.

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