NASSCOM challenges US L1 visa and H1B visa fee increases

Sanwar Ali Comment:

Obtaining US visas is a huge burden.  The amount of paperwork needed for visas such as the L1 visa can be enormous.  Complicated and confusing regulations makes visa applications difficult and uncertain.  Much of the time there is actually no feasible visa option for employers to be able to employ overseas nationals.   Huge increases in US visa fees under the Trump administration will make a bad situation even worse.

Indian IT trade association, NASSCOM (National Association of Software and Services Companies), is challenging the legality of US L1 visa and H1B visa fee increases proposed by United States Citizenship and Immigration Services (USCIS). H1B and L1 visas are widely used by Indian IT companies to transfer highly-skilled workers to the US.

In a complaint filed with the Department of Homeland Security (DHS), NASSCOM has opposed the fee hikes, claiming that USCIS has no authority to increase US H1B and L1 visa fees and argued that only US Congress has the power to raise visa fees.

Meanwhile, pro-immigration bodies – The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) – have urged the US government to scrap the fee hikes, claiming that the proposal would prevent American companies from being competitive.

H1B and L1 visa fee hikes should be scrapped

NASSCOM president, Debjani Ghosh, said: “USCIS clearly lacks the authority to expand the applicability of the 50-50 fees, and the changes proposed to L1 and Premium Processing fees are unjustified and could harm the American economy. None of these proposed changes should go forward.”

The H1B and L1 visa fee increases were proposed by USCIS back in November 2019, along with rules that would stop companies with more than 50 people, half of which were on H1B visas, from applying for more visas.

A fee of $4,000 was proposed for H1B visas, while a fee of $4,500 was recommended for L1 visas.

Under the Trump administration, the US government has preferred to issue H1B visas to American tech companies over Indian IT firms. US visa rejection rates for Indian IT companies rose to 24% in 2019, up from just 6% in 2015.

US companies harmed by tough US visa policy

In 2019, US tech firms were among the top eight recipients of H1B visas, with the AILA arguing that this actually does US employers harm.

The AILA said: “This provision significantly harms US employers, particularly given recent changes to USCIS policies that allow petitions to be approved for less than one year, and in certain cases for as little as one day, requiring employers to file petitions on behalf of the same employee multiple times.”

“The impact is more dire on those employers who employ H1B non-immigrants from certain countries, like India, where the wait for an immigrant visa number spans decades and forces employers to file H1B extension petition after extension petition until the worker becomes a permanent resident,” the AILA added.

US visa premium processing fee

Plans to change the US premium processing fee and deadline would also hit businesses hard, according to the AILA. USCIS is proposing that the premium processing deadline should be switched from 15 calendar days to 15 business days, which could make applications unpredictable for businesses with time sensitive hiring needs.

Meanwhile, USCIS is proposing that different fees are applied to Form I-129, depending on the visa category. This could result in the basic application fee for a H1B visa rising by as much as 22% to $560, while the L1 visa fee could increase by a staggering 77% to $815.

Comments on the proposed rule ended on December 30, 2019. However, the AILA and AIC say that it remains to be seen whether the DHS takes those comments into account.

At this stage, it’s unknown if and when the fees will come into effect.

Currently, Indian nationals are still allocated the highest number of US H1B visas. However, they also top the list for Green Card waiting times, which exceeds more than 10 years, with more than 300,000 citizens waiting for permanent residency in the US.

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