It seems that it was only a matter of time before some tech companies began fighting the Trump administration’s new H-1B rules.
On October 11, ITServe Alliance, a nonprofit group that counts more than 1,000 IT service organizations as its members, filed a lawsuit against the United States Citizenship and Immigration Service (USCIS). The group accuses USCIS of approving visas for too short a period—a few weeks, in some cases, rather than the “standard” three-year term. It wants the court to limit the ability of USCIS to set these ultra-short validity periods.
“This exercise of claimed authority results in H-1B approval periods as short as a few days,” read the group’s complaint. “This often creates the absurd result where Defendant [USCIS] sends approval notices to employers for visas that have already expired.” Indeed, one visa, submitted as an exhibit in the lawsuit, was only valid from June 15 through August 10, 2018—and mailed on August 29.
In an interview with Forbes, Jonathan Wasden, the attorney filing the suit, said that USCIS policy makes it hard for companies to run their operations with any degree of certainty. “USCIS is claiming the authority, in essence, to pick at random how long an H-1B petition is approved,” he said. “This is a major problem because it is almost impossible to run a business when you don’t know if you’re going to have your employees for any reasonable period of time.”
But in a February 2018 memo, USCIS insisted that it does have the authority to set time limits:
“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.”
However this lawsuit pans out, the Trump administration’s visa policies have already provoked legal action. For example, advocacy group Save Jobs USA recently filed a suit against the Department of Homeland Security (DHS), arguing that the agency is taking too long in rescinding the ability of certain spouses of H-1B visa holders to obtain the H-4 visa to work in the United States. DHS has pushed back, insisting that it will submit the rule for approval within the next three months.
In August, technology titans such as Apple CEO Tim Cook and Salesforce CEO Marc Benioff signed an open letter, addressed to U.S. Homeland Security Secretary Kirstjen Nielsen, that argued against the ongoing tweaks to immigration and H-1B policy. “Changes in immigration policy… are causing considerable anxiety for many thousands of our employees while threatening to disrupt company operations,” the text began.
It’s not inconceivable, of course, that a massive firm such as Apple could take more direct action against the government over visas. At this juncture, though, that’s idle speculation. What’s known is that the Trump administration continues to tighten its visa policies—even as tech companies successfully apply for a rising number of H-1Bs.