Orinda, California-based Total Validation Services has sued the Department of Homeland Security and U.S. Citizenship and Immigration Services, claiming that denial of H-1B visas to two of its prospective workers from India was “clearly arbitrary and capricious.”
The lawsuits, which were filed in U.S. District Court for the Northern District of California, come amid a time when USCIS is denying petitions at alarming levels and demanding more “requests for evidence,” proof that a worker from abroad meets the requirements for a specialty occupation. In late October, the National Foundation for American Policy, a non-partisan public policy think tank, released data showing that for the first two quarters of fiscal year 2019, 33 percent of new H-1B applications were denied. In 2018 and 2019 overall, almost a quarter of all new H-1B applications were denied, contrasting greatly with the Obama administration, in which applications were denied in single digits.
Similarly, in the first quarter of fiscal year 2019, USCIS issued a “request for evidence” to 60 percent of applicants, three times higher than previous years. The agency cited its top 10 reasons for issuing an RFE, which included: the petitioner not establishing that the visa was in fact for a specialty occupation or that the beneficiary was qualified to perform the work. (See earlier India-West story: https://bit.ly/2syZLo6)
TVS filed two lawsuits Dec. 10, one on behalf of Meenakshi Sundareswaran Srinivasan, and the other on behalf of Sainath Regulagadda.
In each of its lawsuits, TVS said it was seeking to place Srinivasan — who holds a master’s degree in engineering management from Cal State University, East Bay, and a bachelor’s degree in mechanical engineering from Anna University in Chennai — as a validation engineer at its own offices and at various client locations around the San Francisco Bay Area. In its lawsuit, TVS noted that similar positions require a minimum of a bachelor’s degree.
In June, TVS filed an I-129 petition for Srinivasan, in order to be able to employ him. In its petition, TVS said Srinivasan was “more than qualified” for the proposed job.
In July, the company received a Request For Evidence from USCIS, asking for proof that Srinivasan met the requirements for a specialty occupation. TVS responded, noting that Srinivasan held qualifications equivalent or greater than employees with the same role.
USCIS denied the petition Aug. 24, stating, in part: “A position that allows any ‘engineering’ or ‘science’ degree to qualify is not a specialty occupation because engineering (or science) encompasses numerous fields, many of which are not directly related to each other and
to the proffered position.” Furthermore, said the agency, the wages TVS was offering to Srinivasan did not constitute the type of wages that would be offered to a worker in a specialty occupation.
In its lawsuit, TVS noted it has filed 14 H-1B petitions since 2012, 11 of which have been approved for positions substantially similar to Srinivasan’s proffered post. But as USCIS changed its policy, both applications filed in 2019 have been denied, said the company. “Therefore, the denial of this petition is clearly arbitrary and capricious given the prior eleven approvals of H-1B petitions for roles that are substantially similar,” stated TVS.
Regulagadda holds a master’s degree in Information Technology Management from Campbellsville University in Campbellsville, Kentucky — which has a large ratio of students from India — as well as a Masters of Science degree in Computer Science from Northwestern Polytechnic University in Fremont, California, also popular with students from India.
Regulagadda was to be placed with Boehringer Ingelheim, a pharmaceutical company, for an initial period until April of 2022, and a possible renewal period of two years after that. TVS said it would supervise Regulagadda’s work. USCIS denied the petition in late August, saying that the job description was “generic in nature,” and did adequately qualify as a specialty occupation.
In its lawsuit on behalf of Regulagadda, TVS stated: “No rational connection exists between the conclusion asserted by USCIS in its denial and the facts in the record.”
In both cases, TVS has asked the court to reverse USCIS’s denial of the I-129 petitions.