Expect H1B ‘carnage’ but don’t be afraid to sue, says top immigration attorney Cyrus Mehta

New York based Immigration attorney and expert on H1B matters Cyrus Mehta has waved a red flag hours before the new H1B filing rush begins Monday April 2 warning of the “same sort of H-1B carnage like last year” referring specifically to the methods which the USCIS is adopting to deny H1B applications - commonly referred to by a benign-sounding euphemism ‘Request For Evidence’.

 Expect H1B ‘carnage’ but don’t be afraid to sue, says top immigration attorney Cyrus Mehta

Homeland Security and the USCIS are power centers relatively untouched by turmoil in the Trump White House. Seen on Trump's right is DHS chief Nielsen, a force multiplier for Trump's agenda / REUTERS

The H1B visa filing season for the fiscal year 2019 (starting 1 October, 2018) which allows US companies to hire foreign workers opens April 2, 2018. Indian companies have traditionally led the sweepstakes cornering the lion’s share of visas each year. Immigration lawyers and applicants have their work cut out in Trump’s America which is doubling down on what it chooses to call "H1B abuse".

In 2017, more than 300,000 Indian H1B applications rained down on the USCIS (302,293 is the exact number) and topped the list of 20 'beneficiary' countries - a trend that has stayed unchanged for the last 10 years that data are available. See those numbers here.

Related Links: Every twist and turn of H1B visa policy in the Trump era

In the same breath that he suggests 'carnage', Mehta says it’s about time to contest denials in court against the Trump administration.

“If a petitioner receives a denial of an H-1B petition based on this same reasoning, which is contrary to the law, mounting a challenge in federal court may be worth considering.”

Strong words there coming from Mehta who has spoken out in earlier conversations on the Firstpost platform too against the Trump government’s anti-immigrant policies spreading a gnawing unease in America’s diverse neighbourhoods.

“No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court,” Cyrus Mehta and Eleyteria Diakopoulos explain.

New H1B filings will likely face the same set of challenges on the basis of which H1B extensions are being poked and prodded for RFEs. The heart of the matter is not whether you’re here for the last three years or you’re a rookie. That this is the H1B roulette is enough reason to skewer it, suggest the trail of red splotches on H1B files over the last 15 months that Trump has reigned.

Although refusals began spiking before Trump took office, the ingredients for the backlash run parallel to Trump’s ascent.

Mehta says this at a time when Indians-led H1B advocacy is finding its voice in a much more powerful and immersive way across the American landscape, not just in the US East Coast and the West Coast alone.

Advocacy achieved nothing for the H1B community in the recent budget bill because it got hijacked by a very different political agenda. Mehta agrees that good policy arguments are no longer enough to approve “legitimate H-1B visa petitions” even if it makes the US market more competitive because “high level immigration officials are driven by another agenda based on white nationalism and xenophobia.”

Over the last 15 months or so that Trump has been in power, the boundaries of his presidential authority are being discovered via lawsuits as a last resort. Immigration lawyers are coming around to the view that it's probably time for the (wrongly) vilified H1B to test this frontier.

Updated Date: Apr 02, 2018 07:05:02 IST