Hope to keep your H-1B visa? Don

Software engineers have long been treated, at least in Silicon Valley, as specials, worthy of massive wages and deserving of cozy working conditions and first-class benefits.

Adhering to the profession in your United States The visa application usually does the trick so that your paperwork will fix everything, paving the way for a golden ticket to live and pursue the American dream in the United States of America . Aah.

However, now it seems to be an official policy of the US government. UU That the people who run the software, specifically the software quality control engineers, are equivalent to sweepers, fast food servers and telephone disinfectants. Non-specialized work, in other words.

And everything came to light thanks to Usha Sagarwala, an Indian citizen, who had the audacity to question the wisdom of the United States Citizenship and Immigration Services (USCIS) when she rejected her new job title: Analyst quality Insurance: when you tried to update your H-1B work visa.

Sagarwala has been in the USA UU since 2002 with an H-1B. He changed jobs at his employer HSK Technologies, based in New Jersey, in August 2018, a measure that required him to send an application form to USCIS to update his documentation. Clearly, she and her bosses in the technology company felt that it would be an easy situation, although they felt that no changes had been made to the Trump Administration.

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In the midst of further repression against immigration, the issue of work visas has also been subject to scrutiny, many of them in Silicon Valley, the main recipients of such visas, complaining about the new restrictions. [19659002] The USCIS requested more information on the position of quality control analyst in which Sagarwala was supposed to be, noting that the role description suggested that, in fact, he did not need any special skills to do the job.

His managers He quickly realized that there was a problem and They provided a more detailed file on the position, as well as testimonies on why it was necessary for a highly qualified person to be at work, but it was too late: the USCIS rejected Sagarwala's request.

According to the recent White House policy, we observed that foreigners who have changes in paperwork or rejected applications directly enter the deportation process if their visa period has expired.

The government's decision in his case, Sagarwala appealed to the courts of Washington DC to annul the rejection of his H-1B adjustment.

The resulting appeals court ruling [PDF] issued this week made it clear that she was not impressed with the USCIS decision to reject her petition. He noted that in making his determination, the USCIS was "ignoring or discrediting HSK Technologies' attempted correction," and opposed the USCIS's repeated assertion that there is a "one-grade" rule where a job requires someone have a specific degree to qualify for a visa – noting that the rule does not exist.

Capricious

However, the court also noted that it was only allowed to decide whether the USCIS had made an "arbitrary and capricious" decision to reject the application. The ruling says: "As the court said, however, it can not substitute its own judgment for that of the agency when reviewing under the arbitrary and capricious standard." Instead, he is bound to be "highly deferential to agency decisions".

And so, in reviewing the USCIS decision, he decided that although the agency was clearly not giving the company or the prospective software tester the benefit of the doubt, its analysis and therefore the final decision was reasonable.

The business had not said in its job description that the role requires a bachelor's degree or higher for the position, a crucial distinction for the H-1B visa process. And despite his subsequent efforts in which he said workers would need a title for work, and provided testimony from two industry experts who said the job required a college education, the USCIS did its own review and noted that some Quality control analyst jobs do not. A bachelor's degree in computer science is not required.

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The appeals court noted: at its discretion, it accepted that professional opinion, but, in the absence of further support, the agency was certainly not obliged to do so. "

The court also criticized HSK Technologies for its apparent effort to blind the USCIS with a jargon:" Again, to prove that the quality control analyst's position was complex, HSK Technologies he presented only that list of tasks on a page, and that the one who had the most complex of these duties was heavy in the jargon. The company did not provide any accessible explanation of what those actual responsibilities were

. "Meanwhile, evidence from other employers in the industry indicated that, for similar jobs, some of those employers required a bachelor's degree in a specific specialty, but others did not. "

As a result, the court concluded, "it was not unreasonable for the USCIS to conclude that a bachelor's degree was common throughout the industry in parallel positions, but that in a specific specialty it was not."

There is no base

In each part of Usha Sagarwala's appeal, the USCIS has made its own determination that was not unreasonable and, as such, the court said that "there is no basis for nullifying the agency's decision "

And that is the current one. The reality is that everyone will have to deal with: customs and immigration are tracking each application with an apparent eye to reject them. In this case, Sagarwala's appeal was denied, as was his preliminary injunction to keep his visa valid as the case goes through the courts.

So, if you apply for a visa in your name or for a possible employee, the lesson is clear: be careful with your paperwork. ®

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