March 22, 2015

THE REAL REASON FOR L-1B VISA DENIAL RATES BEING HIGHER FOR INDIAN NATIONALS

A study issued by the National Foundation For American Policy confirms what we attorneys who work in the trenches have feared most. It was already been assumed that an L-1B case for an Indian national will face much higher scrutiny, and one was always prepared to put in a lot more work into such a case, only to expect that the case could still be denied.  The NFAP report entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals now confirms that Indian nationals face the highest refusal rates in the L-1B visa program.
The L-1B visa allows the transfer of a specialized knowledge employee from an overseas entity to a related US entity. This visa should allow US companies to quickly transfer employees in order to remain globally competitive. Instead, the overall denial rate, according to NFAP report, was 35%. Prior to 2008, the overall denial rate was under 10%
Alarmingly, the denial rate for employees coming from India was 56% in 2014 while the denial rate for employees transferred from all other countries was only 13%. The following table from the NFAP report comparing denial rates is very stark and speaks for itself: 
L-B Denial Rates by Country: FY 2012-2014

Country of Origin
Total
Denials
Denial Rate
Indian Nationals
25,296
14,104
56%
Canadian Nationals
10,692
424
4%
British Nationals
2,577
410
16%
Chinese Nationals
1,570
347
22%
Japanese Nationals
1,145
171
15%
German Nationals
1,100
161
15%
French Nationals
753
140
19%
Mexican Nationals
740
157
21%

Source: USCIS; National Foundation for American Policy.

Immigration attorneys knew it in their bones that when they file an L-1B petition on behalf of an Indian national, however meritorious, it is likely to result in a Request for Evidence, and potentially a denial. USCIS examiners change the goal posts to the point that it has become frustratingly ridiculous. We now have the NFAP report to thank for confirming our worst fears. 
Take the example of a company that legitimately produces a software application for the financial industry. It is a proprietary product of the company, and is branded as such. Over the years, the company has developed a loyal client base for this product. The product is upgraded frequently. An employee of the company who has worked on the development of this product in India needs to be transferred to the US so that she can train sales staff in the United States, and also assist in customization upgrades based on each client’s unique needs. This individual should readily qualify for the intra-company transferee L-1B visa as she has specialized knowledge of the company’s proprietary software product. This is what the L-1B visa was designed for by Congress.  Still, there is still going to be a likelihood of refusal of the L-1B visa for this Indian national employee. Even if the L-1B was previously approved, the renewal or extension request of L-1B status may fail. Indeed, the NFAP report confirms that “U.S. Citizenship and Immigration Services adjudicators are more likely to deny a case for an extension of L-1B status than an initial application.” The report goes on to correctly observe: “This seems counterintuitive, since the individual whose status is being extended typically has already worked in the United States for three years and is simply continuing work.” 
A prior blog  describes a common example for denying an otherwise meritorious L-1B visa application of an Indian national: 
In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.
 So let’s try to find out why the refusal rate for Indian nationals is higher than others. Some will justify that since there are more L-1B visa applicants from India, the refusal rate will be proportionately higher. True, but this does not explain why the refusal rate for Indians is 56% while the refusal rate of the next highest number of L-1B visa applications, Canadians, is only 10%. Another argument is that the L-1B visa is seen as a way to get around the H-1B annual cap, and again, since there are more Indian nationals applying for the H-1B visa who did not qualify, it is okay to get tough on their L-1B visa applications. This too is a spurious justification. It is perfectly appropriate for an employer to try to file an L-1B visa for an employee who is qualified for that visa, notwithstanding the fact that he did not make it under the H-1B visa lottery. A person can be eligible for more than one visa classification.
Another justification is that the L-1B visa, like the H-1B visa, is used to facilitate outsourcing. In other words, US workers are replaced by L-1B visa workers who are paid less, and the jobs eventually get transferred to India. One can understand the concern about US workers being replaced by foreign workers, but this does not explain why a company which has a proprietary product that is sold to US financial services clients should get adversely impacted with an arbitrary denial of its L-1B visa application for a specialized knowledge employee.
Moreover, even if an Indian heritage IT firm, accused of outsourcing, wishes to bring in L-1B specialized knowledge employees, it is incumbent upon the USCIS to still meritoriously and objectively determine whether they qualify under the specialized knowledge criteria for the L-1B visa.   As explained in a prior blog, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. This vendetta, spurred on by the likes of Senator Grassley who is the new Chair of the Senate Judiciary Committee and even left leaning think tanks like the Economic  Policy Institute, to deny L-1B visa applications of Indian nationals have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers have always supplied at prices that American business and its consumers could afford. What has gone unnoticed is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that the US government now seeks to destroy. One can also recall Senator Schumer's infamous slip of tongue when he referred to Indian IT companies as "chop shops" instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Gary Endelman adds in an e mail to the author “that the overly restrictive view of the L-1B discourages international trade and investment and that, by discouraging Indian migration to the USA, the USCIS actually expands the wage differential between India and the USA, thereby increasing outsourcing rather than limiting it.”
Indians are already disadvantaged in the US immigration system. As a result of the per country limits in the employment-based (EB) preferences, those born in India have to wait much longer for their green cards than others. In fact, Indian born beneficiaries of EB third preference I-140 petitions may need to wait decades before they can apply for green cards. Then, Indian three year degrees, and even other qualifications on top of the degree, do not get the same level of recognition than degrees from other countries. As a result, many who could qualify for the EB-2 now have to wait for a lifetime in the EB-3 for their green cards while their children age out, and may not be able to derivatively get the green card with their parents. It is even becoming harder to obtain an equivalency based on a three year degree. The latest revelation that the L-1B refusal rates for Indians is the highest, despite the fact that the claim is meritorious and the denial often happens at the renewal stage (after it was previously approved), only leads to one conclusion. It is discrimination. A mindset has crept into the system that L-1B visa applicants from India are undesirable, and ways are then found to deny the application.  The NFAP report is a wakeup call for fair minded people to question such discriminatory practices and to work towards a more just immigration system for people from all countries. 



March 17, 2015

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.

March 1, 2015

EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT

Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisory provides a comprehensive overview of the CSPA.
While the wait in the F1 is generally less than in the F2A, in some instances, it is possible for the F1 to be more backlogged than the F2B.  The Philippines has been the prime example, and was the only country where the F1 was worse off than the F2B for several years. Thus, the issue of whether to opt out of the F1 mainly concerned people born in the Philippines for several years.  Since June 2014, this has changed. The Philippines F1 has been doing better than the F2B, and there has been no need for beneficiaries of I-130 petitions born in the Philippines to opt out.   On the other hand, since June 2014, with the sole exception of Mexico, beneficiaries born in all other countries are better off under the F2B than the F1. This changed too for Mexico as of October 1, 2014, when even Mexican born beneficiaries started doing better under F2B than F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130 petitions born in all other countries are better off under the F2B than the F1.
An quick analysis of how the F-1 has compared to the F2B since 1992 is provided below (courtesy David Isaacson):
For the Philippines, according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled ahead of F1 in August of 1992, and stayed ahead until July of 2014.  Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B, and it too has stayed that way October 2014-March 2015.
As for Mexico, the Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf  shows F1 generally ahead of F2B, but there have been more anomalies over the years.  At the end of FY1996 and in February-March of 2002, F1 was unavailable but F2B wasn’t.  There was an inversion in July 2001 right before both became unavailable for the remainder of FY2001.  In July-September of 2005, Mexico F1 retrogressed all the way to January 1, 1983, while F2B was at January 1, 1991.  In May of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling behind again in the remaining months of FY2006.  In FY2007, Mexico F2B was ahead of Mexico F1 in May 2007 through September 2007.  In FY2009, Mexico F2B pulled ahead, or rather F1 feel behind, during July-September 2009.  The next inversion after that was indeed October 2014, and then it has stayed inverted since.
 Section 6 of the CSPA has been codified in Section 204(k) of the Immigration & Nationalization Act (INA) entitled "Procedures for unmarried sons and daughters of citizens," which provides:
  • In general. - Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter be­ing an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to clas­sify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
  • Exception. - Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
  • Priority date. - Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
  • Clarification. - This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.
What Section 204(k) means is that an F2B beneficiary of an I-130 petition is automatically converted into F1 upon the naturalization of the parent who was previously a lawful permanent resident (LPR).  However, such a beneficiary may opt-out, either prior to the conversion or after the conversion, by requesting such an election through a written statement.  If an election has been made, the son or daughter would be considered under the F2B as if such naturalization of the parent never took place.
At issue is the interpretation of the phrase "in the case of a petition under this Section initially filed for a alien's unmarried son or daughter's classification as family-sponsored immigrant under Section 203(a)(2)(B)."
In a previous USCIS Memo dated March 23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out provision applied only to a beneficiary whose initial Form I-130 was filed after he or she turned 21 or over as  the unmarried son or daughter of an LPR.  If on the other hand, the I-130 petition was filed by an LPR on behalf of his or her child when the child was under 21 years of age, and the child attained the age of 21, and then the parent naturalized, the opt-out provision would no longer be applicable according to that Memo.
Fortunately, the USCIS reversed itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase "initially filed" would be applicable to the beneficiary who was sponsored as a minor.  The June 14, 2006 Memo generously notes that the prior policy had a perverse result of older siblings who were originally sponsored under F2B acquiring permanent residency more quickly than the younger siblings who had to wait longer under the F1.  The Memo also notes that it is reasonable to interpret "initially filed" as "initially filed for an alien who is now in the unmarried son or daughter classification."
At present, beneficiaries born in all countries excepting the Philippines may opt out from F1 and remain in F2B, and thus the guidance provided in the March 23, 2004 Memo regarding contacting the USCIS Officer in Charge in Manila may no longer be relevant. According to a April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District Office with jurisdiction over the beneficiary’s residence. For example, one would have to make such a request with the New Delhi Field Office (which covers India, Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives) if the beneficiary resides in any of these countries.   The question is whether all USCIS District offices are set up to accept unsolicited requests of this sort, and whether such a request would truly be effective.
In addition to writing to a USCIS District Office, one should not be prevented from also writing to either the Service Center that processed the I-130 petition or to the National Visa Center, if the approved I-130 petition is already residing there. It may also be well worth it to notify the USCIS at the time of filing an adjustment of status application if the beneficiary resides in the United States.  For instance, if the beneficiary has automatically converted to F1 and finds that F2B is more advantageous, he or she should still go ahead and file the adjustment of status application accompanied by a letter requesting that he or she be allowed to opt-out of F1. The adjustment-application option arguably complies with the April 2008 Neufeld Memo because a family-based adjustment filing with the lockbox is made with the expectation that it will likely be ultimately forwarded to the local District Office for an interview, by way of the National Benefits Center. 
The timing of making such a request is also crucial. It is probably advisable to make the request to opt out just prior to the priority date becoming current or at the time when it has become current. While one may in principle be able to reverse an opt-out, it is preferable to   wait until the F-2B is current or almost current before opting out.  One would not want to be the test case for how many times you can opt out, and reverse, and reverse your reversal, if the relative positions of the F-1 and F-2B keep changing over time before the priority date is current.
Finally, the USCIS has always taken the position, affirmed by the Board of Immigration Appeals in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked in when the petitioner naturalizes and not the protected CSPA age. Hence, if the beneficiary, who has already turned 21, has his or her age protected under the CSPA so as to remain in the Family Second Preference (2A), as the minor child of a permanent resident parent, then it may not be advisable for the parent to naturalize if the child would be disadvantaged under the F1, or if there is an opt out, under the F2B.  Zamora-Molina further held that the child could not opt out from F1 to F2A, only to F2B.  It is thus important to strategically consider whether naturalization by the parent would be worth it if it would disadvantage the child’s ability to more quickly receive the green card.

(The information contained in this blog is of a generalized nature and does not constitute legal advice).  

February 24, 2015

THE AAO ON H-1B VISA CREDENTIAL EVALUATIONS AND THE 'THREE-FOR-ONE" RULE


By Cora-Ann V. Pestaina

As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee - has the required qualifications. It’s become common knowledge that progressively responsible work experience may substitute for any deficiency in the foreign national’s education and everyone is pretty comfortable with the equivalency ratio of three years of work to one year of college training (the “three-for-one” rule). Under this rule, a foreign national with twelve years of work experience could be deemed to possess the equivalent of a four-year US baccalaureate degree and therefore qualified to hold a specialty occupation.

Going forward on new H-1B petitions and especially as we gear up for the upcoming H-1B cap season, a recent non-precedent decision by the Administrative Appeals Office (AAO) discussing USCIS’ recognition of any years of college-credit for a foreign national’s training and/or work experience is worthy of some careful review as it provides detailed analyses that can help us ward off nasty Requests for Evidence (RFE) from the USCIS upon the filing of H-1B petitions.

The case involved an H-1B visa petition filed by a software solutions provider to employ a foreign national in the position of Senior Associate, Solution Architect. The petitioner based its beneficiary-qualification claim upon a combination of the beneficiary’s foreign coursework (a three-year Bachelor of Commerce degree) and the beneficiary’s work experience and training. The USCIS Director denied the H-1B petition and the AAO subsequently dismissed an appeal of the denial, both on the grounds that the petitioner failed to demonstrate that the beneficiary was qualified to perform the duties of the specialty occupation-caliber Software Developer position.

In its decision to dismiss the appeal and deny the petition, the AAO cited language at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Immigration and Nationality Act (INA). Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-lB nonimmigrant worker must possess:
(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,
(B) completion of the degree described in paragraph (1)(B) for the occupation, or
(C) (i) experience in the specialty equivalent to the completion of such degree,and(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

8 C.F.R. § 214.2(h)(4)(iii)(C), Beneficiary qualifications, provides for beneficiary qualification by satisfying one of four criteria. They require that the evidence of record establish that, at the time of the petition's filing, the beneficiary was a person either:
(1) Hold(ing] a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(2) Hold(ing] a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
(3) Hold[ing] an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
(4) Hav[ing] [(A)] education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and hav[ing] [(B)] recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The AAO pointed out that the clear, unambiguous language at both 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Act, stipulates that for classification as an H-1B nonimmigrant worker not qualifying by virtue of a license or qualifying degree, a beneficiary must possess TWO requirements - the experience in the specialty equivalent to the completion of such degree; AND recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The petitioner submitted three sets of credentials evaluation documents, each an evaluation of a combination of the beneficiary’s foreign education and his work experience and training. Regarding the documentation of the beneficiary’s work experience, the evaluations relied heavily upon an experience letter which indicated that the beneficiary had been employed full-time “from June 2008 through the present” and that he “currently serves in the position of Sr. Associate, Solution Architect.” The letter provided a list of the beneficiary’s current job duties. The AAO found the experience letter deficient in that it did not establish any progression in the beneficiary’s duties and responsibilities or any progression through increasingly responsible positions that would meet the requirement, at 8 C.F.R. §214.2(h)(4)(iii)(C)(4), to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty in question. In other words, the AAO found that the experience letter did not indicate the position in which the beneficiary had initially been hired and whether the beneficiary still held that same position or whether the beneficiary’s current position represented a promotion or a series of promotions. The AAO found that the letter identified only the beneficiary’s current job duties in “relatively abstract terms of generalized functions” and did not state how long the beneficiary was performing in that current job. Because the letter failed to recount the beneficiary’s prior positions with the employer and the duties and responsibilities of those prior positions, it therefore did not establish that the beneficiary had achieved progressively responsible positions to indicate recognition of expertise in the pertinent specialty, as the provisions at 8 C.F.R. §214.2(h)( 4)(iii)(C)( 4) include as an essential element for establishing a beneficiary's qualifications through a combination of education, training, and/or experience. The AAO held that the letter provided an insufficient basis for the evaluators to make any conclusions about the nature and level of college-course-equivalent knowledge that the beneficiary gained throughout his employment.

The AAO also took issue with what it described as a “misinterpretation and misapplication of the so-called “three-for-one” rule” which evaluators use to recognize any three years of work experience in a relevant specialized field as equivalent to attainment of one year of college credit in that specialty. The AAO stated that only one segment of the H-lB beneficiary-qualification regulations provides for the application of the three-for-one ratio, and that is the provision at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), which reserves the application exclusively for USCIS agency-determinations and moreover, that portion of the regulations requires substantially more than simply equating any three years of work experience in a specific field to attainment of a year's worth of college credit in that field or specialty. The AAO pointed out that evaluators seem to have adopted as their standard of measure only the numerical portion of the ratio segment of the regulation at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), that is, "three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks" and neglected to recognize the rest of the test which limits application of the “three-for-one” rule to only when USCIS finds that the evidence about the "the alien's training and/or work experience" has (1) “clearly demonstrated” that it included the theoretical and practical application of specialized knowledge required by the specialty occupation; (2) “clearly demonstrated” that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; AND (3) “clearly demonstrated” that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;
(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or
(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

Finding that the beneficiary’s experience letter failed to meet these three criteria, the AAO held that such evidence did not qualify for recognition of any years of college-level credit.

The decision also points out that under 8 C.F.R. §214.2(h)(4)(iii)(D)(3), only a “reliable credentials evaluation service that specializes in evaluating foreign education credentials” can evaluate a foreign national’s education. In the instant case, the AAO therefore dismissed two evaluations prepared by individuals and not by credentials evaluation services as having no probative weight. 

The AAO also found fault with one evaluation of the beneficiary’s experience/training since the proof of the evaluator’s own credentials qualifying him to provide the evaluation included an endorsement letter from the Chairman of the Department of Computer Science at the education institution where the evaluator was employed, dated four years prior to the evaluation and a letter from the Registrar which stated that the evaluator had the authority to “recommend college-level credit for training and experience” and did not state that he had the power to “grant” college-level credit or go into any detail as the specific extent of his authority in this regard. The letter from the Registrar was also dated a year prior to the evaluation. 

The AAO decision also touched on the fact that two evaluations mentioned that the beneficiary had completed “professional development programs in a variety of computer technology and accounting-related subject[s]” and provided no concrete explanatory information about the substantive nature of those programs and what their completion may have contributed in terms of equivalent U.S. college-level coursework.

With regard to any use of a foreign national’s resume as evidence of his work experience, the AAO decision pointed out that  a resume represents a claim by the beneficiary, rather than evidence to support that claim.

This is one non-precedent decision and the AAO seems to be taking a very hard line in denying a case where the beneficiary provided evidence of his work experience. Immigration practitioners who file H-1B petitions may feel that USCIS has not been taking such an extreme stance in previous petitions. It is up to each practitioner to discuss the issue with the prospective H-1B employer and decide on whether to submit a wealth of documentation with the initial H-1B petition or take the chance that the USCIS could issue an RFE. So what can we take away from this AAO decision?
  • Most importantly, the “three-for-one” rule cannot be taken for granted. It is important that the foreign national obtain extremely detailed experience letters from former employers, which describe each position that the foreign national has held such that the progressively responsible nature of the positions is evident and indicates the foreign national’s level of expertise in the specialty. The description of the foreign national’s duties and responsibilities should make it clear that his work included the theoretical and practical application of specialized knowledge required by the specialty occupation. The letters should also mention the foreign national’s peers, supervisors and subordinates who have degrees in the specialty occupation. The H-1B petitioner must also demonstrate that the foreign national has recognition of expertise in the specialty evidenced by at least one type of a list of five types of documentation described above. This can be accomplished by submitting two expert opinion letters from two college professors along with contemporaneous evidence of their ability to grant college-level credit.
  • Only a foreign credentials evaluation service may evaluate a foreign national’s education. Accordingly, if the foreign national has a combination of education and work experience, the submission to the USCIS cannot contain only expert opinions from professors but must also include an evaluation from a foreign credentials evaluation service. 
  • Any evidence of the foreign national’s training must be accompanied by transcripts and a discussion about the nature of the program and what each program is worth in equivalent U.S. college level coursework. Again, if relying on a college professor to do an equivalency, the evaluation must be corroborated with evidence from the college authorities that the professor has the authority to grant credits and must provide further details under what circumstances this professor is authorized to grant those credits.
  • The foreign national’s resume should never be used as documentation of his experience.