Software engineers have long been treated, in Silicon Valley at least, as special, worthy of massive salaries, and deserving of cozy work conditions and top-of-the-range benefits.
Sticking the profession down on your US visa application usually does the trick in getting your paperwork eventually all sorted, paving the way for a golden ticket to live and pursue the American Dream in the United States of America. Aah.
However, it is now seemingly official US government policy that some software-wrangling folk – specifically, in this case, software quality assurance engineers – are equivalent to road-sweepers, fast-food servers, and telephone sanitizers. Non-specialty work, in other words. Not special at all.
And it's all come to light thanks to Usha Sagarwala, an Indian national, who had the audacity to question the wisdom of the US Citizenship and Immigration Services (USCIS) when it rejected her new job title – quality assurance analyst – when she tried to update her H-1B work visa.
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Sagarwala has been in the US since 2002 on a specialty H-1B. She shifted job positions at her employer HSK Technologies, based in New Jersey, in August 2018, a move that required her to mail an application form to USCIS to update her paperwork. Clearly she and her bosses at the tech company felt the role change would be an easy rubber-stamp situation, though they underestimated the Trump Administration's sweeping crackdowns on immigration rules.
This all comes amid a larger clampdown on foreigners: work visas have come under tight scrutiny, with many in Silicon Valley – the main recipients of such visas – complaining about sudden harsh restrictions.
The USCIS asked for more information on the QA analyst position that Sagarwala was due to enter into, noting that the description of the role suggested she did not, in fact, need any special skills to do the job – in which case she, as a H-1B visa holder, would be ineligible to hold the position as it was not, in Uncle Sam's view, a specialty role. Which would clear the way for her swift deportation from the US.
Her managers quickly realized there was a problem and scrambled. They provided a more in-depth dossier on the position, as well as testimonies on why it was necessary for a highly skilled person to be in the job. But it was too late: the USCIS rejected Sagarwala's request.
Under recent White House policy, we note, foreigners who have paperwork changes or submissions rejected go straight into deportation proceedings if their visa tenure has expired.
Unhappy with the administration's decision in her case, Sagarwala appealed to Washington DC's courts to overturn the rejection of her H-1B adjustment.
The resulting appeals court judgment [PDF], handed down this week, made it plain that it was not impressed with the USCIS's decision to reject her request. It noted that in making its determination, the USCIS was "either ignoring or discrediting HSK Technologies’ attempted correction," and it took issue with the USCIS repeated claim that there is a "single degree" rule – where a job requires someone to have a specific degree to be qualified for a visa – noting that the rule doesn't exist.
But, the court also noted that it was only allowed to rule on whether the USCIS had made an "arbitrary and capricious" decision in rejecting the application. The judgment reads: "As the court already said, though, it may not substitute its own judgment for that of the agency when reviewing under the arbitrary and capricious standard." Instead, it is obliged to be "highly deferential to agency decisions."
And so, in reviewing the USCIS's decision, it decided that while the agency was clearly not giving the company or would-be software tester the benefit of the doubt, its analysis and so ultimate decision was reasonable.
The biz 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 its subsequent efforts in which it said workers would need a degree for the job, and provided testimony from two industry experts saying that the job requires college-level education, the USCIS did its own review and noted that some QA analyst jobs don't require a computer sciences degree.
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The appeals court noted: "USCIS could have, in its discretion, accepted that professional opinion, but, absent more support, the agency certainly was not required to."
The court also criticized HSK Technologies for its seeming effort to blind the USCIS with jargon: "Again, to prove that the QA Analyst position was complex, HSK Technologies submitted only that one-page list of duties, and the most complex-sounding of those duties were heavy on jargon. The company failed to provide any accessible explanation of what those responsibilities actually entailed.
"Meanwhile, the 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 that others did not."
As a result, the court concluded, "it was not unreasonable for USCIS to conclude that a bachelor’s degree was common across the industry in parallel positions, but that one in a specific specialty was not."
The same issue played out on each part of Usha Sagarwala's appeal – the USCIS has made its own determination which was not unreasonable – and, as such, the court said "there is no basis for setting aside the agency’s decision."
And that is the current reality that everyone is going to have to deal with: customs and immigration are scouring every application with an apparent eye to rejecting them. In this case, Sagarwala's appeal was denied as was her preliminary injunction to hold her visa as valid while the case runs through the courts.
So if you are applying for a visa on your own behalf or for a potential employee, the lesson is clear: be careful of your paperwork. ®
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