The Proposed USCIS Guidance on Job Portability: Good, Bad or Ugly?

INA  204(j)  was enacted on October 6,  2000 as part of the American Competitiveness in the 21st Century Act (AC 21). This provision is rather innovative as it allows for the beneficiary of an approved I-140 immigrant visa petition to exercise portability to a same or similar job if an I-485 adjustment application has been pending for more than 180 days. The purpose behind INA 204(j) is to provide job flexibility to foreign national workers when there have been delays in processing an application for permanent residency.

The actual verbiage in INA 204(j) for the benefit of readers is as follows:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

While Congress had contemplated a delay of 180 days as being intolerable, the delays can be far worse. For instance, one can file an I-485 application when the priority date becomes current, and then it may retrogress, resulting in the I-485 application remaining pending for years. A case in point is when applicants filed I-485 adjustment applications under the July 2007 visa bulletin, when it was current, and many under the India employment –based third preference are still pending after the dates retrogressed the following month in August 2007. With the new innovation in the  Visa Bulletin starting October 2015 – resulting in a filing date and final action date – there will also likely be longer than 180 day waits after an I-485 application has been filed pursuant to a current filing date.

Given that 204(j) was created to promote job mobility for workers who would otherwise be stuck in the same job without any career progression, it is important that the USCIS broadly interpret   whether “the new job is in the same or a similar occupational classification as the job for which the petition was filed.” If the conditions of 204(j) are met, the labor certification and I-140 petition filed by the prior employer remain intact, and the worker can port and obtain the green card through a new job, provided it is same or similar to the one that was the subject of the labor certification and I-140 petition. INA 204(j) promotes job flexibility either with a new job through another employer or a different job with the same employer.

This is why the proposed guidance memo from the USCIS issued on November 20, 2015 has received so much attention. Once this guidance memo is finalized, and the public has until January 4, 2016, to comment, will the memo spoil the party or would it make it easier for foreign national employees with pending I-485 applications? Till now, at least in this author’s experience with respect to meritorious cases and based on anecdotal information from other attorneys, it has generally been possible to make a winning argument that the job is same or similar without the need for a guidance memo, based on the plain language of 204(j). At the same time, many have been hesitant to change jobs due to the risk of the USCIS not accepting that they have moved to similar employment without proper guidance. The proposed guidance is not yet final, and there is scope to improve it so that workers can avail of optimum job mobility as Congress intended when enacting INA 204(j).

The proposed guidance first attempts to divine the plain language meaning of same or similar. With respect to the meaning of  “same,” there should be little difference in opinion. The two jobs have to be “identical”, according to the Oxford English Dictionary or “resembling in every relevant respect”, according to the Merriam-Webster Dictionary. Divining the plain meaning of “similar” becomes more contentious. The proposed guidance indicates that it could mean “alike in substance or essential, ” according to the Merriam-Webster dictionary or it could mean “having a marked resemblance or likeness”, according to the Oxford English Degree. The proposed guidance then selects the Oxford English Dictionary definition and pronounces that “similar” under 204(j) means “having a marked resemblance or likeness.” But there are other definitions of “similar” that are broader than the Oxford English Dictionary’s definition. For example, this author’s version of the Oxford American Dictionary includes one definition of “similar” as “resembling something but not the same.” Why does USCIS choose only one definition over all others? “Resembling something but not the same” provides more flexibility than “having a marked resemblance or likeness.” A Google search for the definition of “similar” reveals  “resembling without being identical.” Even this is a better definition to  “having a marked resemblance or likeness” which is what the USCIS has selected for its proposed guidance. Rather than for the USCIS to select one definition of “similar” to others,  it ought to allow applicants exercising portability to establish the definition of “similar” through any credible dictionary source.

The proposed guidance also slavishly adheres to the DOL’s Standard Occupational Classification (SOC) codes. It is true that INA 204(j) requires that the job be in “the same or a similar occupational classification,” but that does not mean that Congress said it must be the DOL’s SOC.  While the proposed memo also guides USCIS adjudicators to view other evidence, and properly reminds them to use the preponderance of evidence standard, there is a risk that a USCIS adjudicator may rely exclusively on the SOC codes of the occupation that was subject to the employer’s sponsorship and the new occupation. Too much reliance on the SOC codes is problematic as it can lead to  excessive rigidity, thus undermining an adjudicator’s ability to provide flexibility to the applicant, which is what is intended in 204(j) . In an employer sponsored green card process involving labor certification, the DOL is notorious for not assigning a correct code. Note also that the SOC does not cover every occupation under the sun. The SOC is a successor to the now obsolete Dictionary of Occupational Titles (DOT), which covered many more occupations. The DOL has a tendency to assign an SOC with the objective of forcing the employer to pay the higher wage, and the duties described under an SOC occupation need not exactly match the duties of the actual position.  For example, if an employer requests a prevailing wage determination and suggests the SOC code of 19-1042.00 corresponding with “Medical Scientists, Except Epidemiologists” , the DOL may instead assign “Natural Sciences Managers” corresponding to SOC code 11-9121. This may be the case even though the position primarily involves research in a distinct scientific field, with some coordination in planning the research with other colleagues in the research laboratory. While Clinical Research Coordinator (SOC Code 11-9121) may be a better match to such a position than Medical Scientists, Except Epidemiologists,” there is no available wage date for that position, and so this specific SOC code cannot be assigned to the employer at least for purposes of determining the prevailing wage. It is time consuming for an employer to challenge the DOL’s SOC code for the occupation, which normally requires the employer to take an appeal to BALCA and hope for reversal, which it did on the same facts in Matter of General Anesthesia Specialists Partnership Medical Group, 2013-PWD-0005 (Jan. 18, 2014).  However, most employers are unwilling to appeal and take the SOC code that the DOL assigns.

Now imagine after a few years, the beneficiary of the approved labor certification wishes to port to a similar job under INA 204(j). The duties of the actual position have primarily involved research rather than managerial duties ascribed to  “Natural Sciences Managers” in the SOC. There is some risk that the new occupation, if it is research oriented and applicable only to scientists,  may according to a USCIS adjudicator, not comport with “Natural Sciences Managers,” which was wrongly assigned to the position in the first instance. “Natural Science Managers” involve managerial duties of a non-scientific nature, and the duties do not necessarily involve front line scientific research. There is also a chance that the DOL may find that the occupation involves a combination of duties, and may assign the SOC code for the occupation with the higher wage. Thus , in Matter of Emory University, 2011-PWD-00001 (Feb. 27, 1012), while the employer who was sponsoring a foreign national for  the position of “Supervisor, Clinical Genetics Laboratory” selected “Geneticist” corresponding with SOC code 19-1029, the DOL thought that since the occupation involved a combination of duties involving scientific research and coordination, it assigned “Natural Sciences Managers”. If this individual now ports to a position that involves front line research in genetics, again there is a risk that the  “same or similar” argument under INA 204(j) may not be accepted if he or she is not going to be taking up a position involving managerial duties under  “Natural Sciences Manager.” There are other problems in emphasizing the SOC code. Some occupations are emerging and may not even have SOC codes. Those stuck in the backlogs, if Congress does not expand the supply of immigrant visas, may not be able to receive green cards for several years, as we have seen with the “Class of 2007” pending adjustment applications. New occupations in the future might receive different SOC codes that do not conform to the major group or minor group occupations.

The proposed guidance explains how the SOC works by providing the example of “web developer” that corresponds with SOC code 15-1134. The first two digits “15” is the major group classification, which includes all computer and mathematical occupations and corresponds with 15-0000. The third digit “1” indicates the minor group, which is all computer occupations and corresponds with 15-1100. The fourth and fifth digits “13” indicate the broad occupation, namely, software developers and programmers, which corresponds with 15-1130. The sixth digit “4” indicates the detailed occupation, which corresponds with 15-1134 – Web Developers. The proposed guidance then states that if the entire six digits match between the original position and the new position, then such positions will be treated favorably. The proposed guidance also states that if there is a different occupational code between the same broad occupations, denoting “13”,  then it will generally be considered same or similar under 204(j). Examples of different codes within the broad occupations include Computer Programmers (15-1131); Software Developers, Applications (15-1132); Software Developers, Systems Software (15-1133) and Web Developers (15-1134). All of these occupations are found within the broad occupation of Software Developers and Programmers (15-1130). But what if the new job is in a different broad occupation, such as Computer Systems Engineers/Architects, which corresponds with SOC code 15-1199.02?  The fourth and fifth digits are “19” and no longer “13”. Will this throw off the USCIS adjudicator, and will he or she now issue a Request for Evidence?

Fortunately, the proposed memo does contemplate jobs with totally different codes can also be considered same or similar under the preponderance of evidence standard. For instance, the original job would be under 15-0000 for Computer and Mathematical Occupations while the new job may be under 17-0000 for Architecture and Engineering Occupations. Still, the proposed guidance cautions that some occupations under the same broad occupational code may fail the same or similar test. Thus, Geographers (19-3092) and Political Scientists (19-3090), while falling under the broad occupational code for Miscellaneous Social Scientists and Related Workers (19-3090),  may not pass muster under 204(j). The proposed guidance also admirably  takes into account career progression. Thus, a Software Developer (15-1132) may be promoted to a position corresponding with Computer and Information Systems Managers with an SOC Code of 11-3021. The new position would be considered similar to the old position since an Information Systems Manager would supervise Software Developers and other occupations within 15-1130. But what if this individual formed his or her own startup, where  she is now the CEO and spends about 49% of her time in general management functions, such as marketing and obtaining venture capital funding, and the remaining 51% of her time in supervising technical development of a software application. This person should also be able to qualify under the same or similar standard, but Chief Executive corresponds to SOC Code to 11-1011 rather than Computer and Information Systems Managers with an SOC Code of 11-3021. The proposed guidance provides an example of a Restaurant Cook (35-2014) progressing to Food Service Manager (11-9051), and indicates that this career progression may fail under  the “same or similar” test as the Food Service Manager’s duties are different from a Restaurant Cook.  Again, the proposed memo relies on the fact that the SOC classification for Food Service Managers excludes “Chefs and Head Cooks,” even though in reality a Food and Service Manager may supervise cooks. However, the proposed guidance grudgingly concedes that if the applicant can prove that the original duties of a Restaurant Cook included the duties of a Food Service Manager, such as ordering supplies, setting menu prices and planning the daily menu, then it may be considered a normal career progression. This may be difficult for an applicant to establish, and it may be easier for the applicant to establish that a Food Service Manager also supervises the cooks in a restaurant, but the adjudicator may rely on the SOC description, which clearly states that a Food Service Manager excludes Chefs and Head Cooks.

The USCIS guidance ought to give primacy to an evaluation of the job duties, requirements and skills between the two jobs, rather than on the SOC codes, and should also give weight to an applicant’s credible argument that the positions are similar. If the USCIS insists on SOC Codes, they should be used as an aid to facilitate a determination on whether the position is same or similar, rather than insist that the SOC code drives the determination. We already have seen that if the USCIS asks its adjudicators to rely on formulaic governmental classifications, its adjudicators will  likely exclusively rely on them rather than consider an applicant’s plausible arguments in favor of granting the immigration benefit. A good example is the USCIS’s rigid application of the Occupational Outlook Handbook (OOH)when evaluating whether an H-1B petition is a specialty occupation. If there is any whiff of reference in the OOH that one can qualify for an occupation through a generalized college degree, the USCIS pounces upon that in refusing H-1B classification notwithstanding the employer submitting credible evidence to the contrary that a person can only qualify for the position with a bachelor’s degree in a specialized field.

The proposed guidance also indicates that all prior memos are superseded relating to whether the two positions are in the same or similar occupational classification. “This guidance does not address other procedural requirements of the 204(j) portability determination” according to the proposed guidance. The Memo of Michael Aytes dated December 27, 2005 on AC 21, for example, does provide other useful guidance, which may be superseded, but which is essential to 204(j) portability and which has not been addressed in the proposed guidance.  While those are procedural requirements of the 204(j) portability determination, they are conflated with same or similar guidance, and thus a USCIS adjudicator may disregard the prior guidance. For example, the Aytes Memo correctly indicates that a foreign national can port to self employment, provided the employment is in a “same or similar” occupational classification. The ability for an applicant to port into self employment or to his own startup should be preserved and emphasized in the final guidance, along with other invaluable guidance such as differences in geographical location should not be a basis for denial.

Given the long backlogs in the employment-based preferences, portability provides the only salvation. It may also be deployed  in a proposed rule to provide employment authorization to beneficiaries of approved I-140 petitions (RIN:1615-AC05), and this  may be conditioned on whether they have changed jobs within a same or similar occupation. Although INA 204(j) can only be invoked if there is  a pending I-485 adjustment application, the DHS has authority under INA 247(h)(3) to provide employment authorization to broad groups of non-citizens under conditions that it can fashion, and also has broad discretion to determine whether an I-140 petition can or cannot be revoked under INA 205, and thus DHS can condition the grant of employment authorization, and the retention of the I-140 petition,  based on whether the new job is same or similar to the prior job. Thus, the proposed guidance on INA 204(j) portability could have greater implications.

In conclusion,  it is vitally important that foreign nationals stuck in the employment-based backlogs be provided with broad flexibility to change jobs, and so all stake holders ought to comment on or before January 4, 2016 the defects in the guidance, as suggested in this blog, in order to ensure that the final guidance affords maximum job flexibility to skilled legal immigrants caught in the crushing employment backlogs.

Sink or Swim Together: States Have No Legal Basis to Refuse Syrian Refugees

Since the Paris attacks, 31 states have objected to Syrian refugees being resettled within their boundaries. This is so even after these refugees have been carefully selected after demonstrating a well founded fear of persecution, and have undergone a  security vetting procedure that takes almost two years.

The Supreme Court held just over a century ago in  Truax v. Raich that a state could not pass a law that deprived employers from hiring only a certain percentage of non-citizens in their work force. Truax v. Raich stands for the proposition that once a non-citizen has been admitted under federal law, this individual has a right to live anywhere in the United States, and to also enjoy equal protection under law. Thus, the Arizona law that would result in the criminal prosecution of an employer who hired foreign nationals over the percentage limit was found unconstitutional.  Truax v. Raich further upheld the doctrine of federal preemption of state laws that conflicted with the ability of the federal government to admit non-citizens,  and which also conflicted with the Fourteenth Amendment that guaranteed foreign nationals within the jurisdiction of the United States equal protection of the laws.

In Edwards v. Californiaa case not involving a foreign national, the Supreme Court held invalid a California statute making it a misdemeanor for anyone knowingly to bring or assist in bringing into the State a nonresident indigent person. This case involved a US citizen and resident of California who traveled to Texas with the intention of bringing back to California his wife’s brother, who was also a US citizen and an indigent person. This person was charged under the California statute that the Supreme Court found unconstitutional, and which cited  the famous words of Justice Cardozo from a prior case:

“The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division.”

Thus, under both Truax v. Raich and Edwards v. California, states cannot refuse refugees who have been lawfully admitted into the United States. Refugees, and the programs that assist them, can still defy a state’s refusal to welcome them, although, unfortunately, a state is not obligated to cooperate with the Office of Refugee Resettlement assistance programs and other private charities. They don’t have to help administer the refugee program if they’re determined not to, in the same way that states can refuse to have their employees enforce federal gun control laws ( as in Printz v. United States)  or federal marijuana laws (as in Colorado  at the moment) even though they cannot actually bar refugees from entering their states.

This makes it all the more important that the Supreme Court overturns the Fifth Circuit decision in  Texas v. United Stateswhich upheld Texas’s standing to sue the federal government over its implementation of deferred action programs. Texas dubiously relied on Massachusetts v. EPA for claiming standing by analogizing greenhouse gas pollutants that Massachusetts would be harmed by due to EPA non-action with deferred action recipients who would request driver’s licenses and thus make it more financially burdensome for Texas. Just like Texas claimed that it would be injured due to additional expenses it would incur in granting licenses to non-citizens granted deferred action, a state may also sue the federal government for being harmed for resettling refugees within its boundaries due to security reasons. Whether the state can succeed is a different matter, especially since there are strong precedents against it by way of Truax v. Raich and Edwards v. California, but a state can still try. It may raise a novel theory that these two precedents involved economic issues, while a state’s ability to protect its citizens from terrorist attacks is distinguishable from economic issues.  The government in its recent petition for certiorari correctly states that if the Fifth Circuit majority decision prevailed  “Texas could claim standing to sue the government for making an individual decision to grant asylum and would clearly have standing to sue the government any time it adopted immigration policies providing relief to a substantial number of aliens in Texas in any of these categories.” States should not get standing in another law suit against the federal government on another manufactured theory of harm if refugees still settle within their boundaries in defiance.

In addition to the states refusing to accept refugees, the House on November 20, 2015 overwhelming passed HR 4038 289-137 (with 47 Democrats voting in favor) that would already make an already arduous vetting process even more difficult. It would require both the director of the FBI and of Homeland Security to personally certify each person being admitted has been fully vetted and they’re confident they’re not going to be terrorists. This would in effect negate the ability of the United States to admit any refugees from Syria. Both the refusal by more than half of the states and the House bill go against the long held notion of America being a nation of immigrants as well as the shining beacon, as represented by the Statue of Liberty,  for the world’s oppressed. Syrian refugees are some of the world’s most vulnerable people, and taking only 10,000 refugees who have been so carefully vetted, is already a small drop in the ocean in comparison to Germany admitting over 800,000 Syrian refugees, and France still accepting 30,000 refugees even after the horrific attacks. America should be doing more, and ought not be overcome by political hysteria after the attacks, which were carried out by people of French and Belgian nationality. We fortunately have strong Supreme Court precedents that render the refusal by states to take in Syrian refugees legally dubious, and a strong balances in our political system (the Senate still have to vote and the President has veto power), that may ultimately block the passage of the House bill. Let’s keep fingers crosses in favor of upholding long cherished American values.

Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization

Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act.

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA.

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit’s majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts.

The Supreme Court in Arizona v. United States132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

Studying for the H-1B: USCIS Questions the Business Administration Degree

Since writing last year on the challenges facing employers who wish to hire H-1B workers for uncommon specialty occupations, we have seen the U.S. Citizenship and Immigration Services (USCIS) present a novel way to push back on H-1B filings: by challenging whether the beneficiary’s degree is in a field related to the specialty occupation.  This has especially been rampant in cases where the minimum requirement is a business administration degree.

To recap, the onus is on the petitioning employer to demonstrate that the proffered position requires the “theoretical and practical application of a body of highly specialized knowledge” and“attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”  Immigration and Nationality Act (INA) §214(i)(l).  The regulations further define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  See 8 CFR §214.2(h)(4)(iii)(A).

Two recent cases provide insight into how the USCIS is interpreting the above statute and regulations.  The first was a non-precedent decision from the USCIS Administrative Appeals Office (AAO) dated April 7, 2014 upholding the denial of the H-1B petition of an IT solutions company for a “Project Compliance Analyst.”  The petitioner filed its Labor Condition Application (LCA) for the occupational category “Management Analysts” (OES/SOC Code 13-1111.00), with a Level I prevailing wage rate.  The position’s minimum qualifications called for a bachelor’s degree in business administration or a related field and two years of project management or management consulting experience.  The AAO did not find that the position is a specialty occupation, and also noted that even if it had ruled differently, there was insufficient evidence to demonstrate that the beneficiary met the minimum requirements of the proffered position.

The primary issue in the case was whether the petitioner’s requirement of a bachelor’s degree in business administration or a related field met the requirements of a specialty occupation.  The petitioner had argued, using an AILA memorandum dated April 4, 2012 and addressed to the USCIS director, that a bachelor’s degree in a specific specialty is not required if the petitioner satisfies one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A).  The AAO rejected AILA and the petitioner’s interpretation and reiterated that USCIS has always interpreted the regulations in harmony with the statute, meaning that the four prongs provide supplemental criteria “that must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty occupation.”

The first step in the AAO’s analysis is determining if the degree is in a specific specialty that is directly related to the proffered position.  Specialties that are closely related meet the “degree in the specific specialty (or its equivalent)” requirement of INA § 214(i)(l)(B) easily.  The AAO’s example of closely related specialties is chemistry and biochemistry where the body of highly specialized knowledge would be essentially the same.  On the other hand, when the minimum requirements are in two disparate fields, such as philosophy and engineering, then the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the position such that the ‘body of highly specialized knowledge’ is an amalgamation of the different specialties.”  The AAO also said it would find a specialty occupation in a case where the job duties and requirements are a combination of a general bachelor’s degree and experience such that both INA §214(i)(l)(A) and (B) are satisfied.

But the statute and regulations allow for the minimum requirements to be a bachelor’s degree in a specific specialty or its equivalent.  When relying on a degree that is not a single specific specialty, the employer will have to demonstrate that the position is a specialty occupation by meeting one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A).  And what this case teaches us is that the USCIS no longer views the business administration degree, without more, as being a degree in a specific specialty.
The petitioner here found itself having to prove that it meets at least one of the criteria listed in 8 CFR §214.2(h)(4)(iii)(A).  To meet the first prong (a bachelor’s degree or higher in a specific specialty or its equivalent is normally the minimum requirement for entry into the position), the petitioner cited the U.S. Department of Labor’s Occupational Outlook Handbook (“OOH”) entry for Management Analysts, specifically the minimum requirements for the field: 

A bachelor’s degree is the typical entry-level requirement for management analysts.  However, some employers prefer to hire candidates who have a master’s degree in business administration (MBA)… [M]any fields of study provide a suitable education because of the range of areas that management analysts address.  Common fields of study include business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English.

The AAO was not convinced by this argument.  In an ungenerous reading of the OOH’s entry for the position, the AAO said that because the OOH stated that bachelor’s degrees are typical did not insinuate that they are always required for the position.  Moreover, the AAO found that because the OOH lists many disparate fields that Management Analysts practice in (business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English), it could not conclude that this occupational category is one that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in a specific specialty as required by INA § 214(i)(l) and 8 CFR § 214.2(h).  The takeaway lesson here is to be careful when relying on the OOH when there is no specific specialty entry field for the occupation because the AAO will interpret the degree requirement as too general and not specific enough for a specialty occupation. 

Unfortunately for the petitioner in this case, the AAO was not swayed by evidence that the position met the other three prongs (sample ads submitted were not in parallel positions among similar organizations (strike for prong two), petitioner could not argue that it normally requires a degree for the position since it was a newly created one (strike for prong three), and the job duties were too general for the AAO to surmise that the position is so specialized and complex that knowledge required to perform the duties is usually associated with getting a bachelor’s or higher degree (strike for prong four)).  The petitioner’s arguments about the complexity of the position was also hurt by the fact that its Level 1 wage rate on the LCA – a wage rate associated with entry level positions.  If an employer wishes to make the argument that the position is a specialty occupation because it is complex and unique, it cannot then only pay entry level wages.  Thus, in this case where a business administration degree was the minimum requirement, the case was denied because the USCIS is not convinced a business administration degree was in a specific enough specialty and the petitioner could not demonstrate how the position met one of the prongs of 8 CFR §214.2(h)(4)(iii)(A).

In a second recent case, the USCIS again questioned whether the minimum requirement was in a specialty related to the occupation.  The H-1B petition was filed by a home health care provider for a Deputy Controller, with a finance degree as the minimum requirement.  Irish Help at Home LLC v. Melville, Case3:13-cv-00943-MEJ (N.D. Ca. Feb. 24, 2015).  As in the case discussed above, the OOH profile for the relevant occupational category, Financial Managers (SOC/OES Code 11-3031.00), listed “a bachelor’s degree in finance, accounting, economics, or business administration” as the degrees often required for financial managers, but that “many employers now seek candidates with a master’s degree, preferably in business administration, finance, or economics.”  Despite requiring a bachelor’s degree in finance or a related field (which the beneficiary readily met with her Finance degree), the Court upheld the denial, not convinced that the proffered position is a specialty occupation because even a general purpose degree like a bachelor’s in business administration would have adequately prepared a candidate for the position, thus undermining the petitioner’s assertion that the position required a degree in a specific specialty.  So it would seem again that the business administration degree, without more, is too general to be sufficient as the minimum requirement for an H-1B specialty occupation.  It would behoove the petitioner to provide even more evidence that the position is a specialty occupation by arguing how it meets at least one of the other prongs in 8 CFR §214.2(h)(4)(iii)(A).  And it is worth noting that in this case also, the petitioner argued that the position was complex and unique but this was undermined by its classification of the position at the Level 1 wage rate in the LCA.

Elsewhere, anecdotal evidence has confirmed that the USCIS continues to use Requests for Evidence (RFEs) to question whether business administration degrees are directly related to the proffered position.  As an example, an IT services and software solution company filed a petition for a systems analyst classified in the Computer Systems Analyst occupational category (SOC/OES code 15-1121.00).  The USCIS issued an RFE questioning how a bachelor’s degree in business administration is related to the field.  The RFE cited case law, specifically Matter of Ling, 13 I&N Dec. 35 (Comm. 1968), to point out that “business administration” is a general term for professional and non-professional activities, a business administration degree would be insufficient to qualify the degree holder as a member of the professions, “unless the academic courses pursued and knowledge gained is a realistic prerequisite to a particular occupation in the field of business administration in which he is engaged or plans to be engaged.”  This should give pause to petitioners and attorneys alike.  Whereas before petitioners may have obtained approvals for holders of business administration degrees in the IT sector, now their minimum requirements will be questioned, and they will have to show (1) how business administration is a degree related to the IT position, and (2) how the beneficiary’s business administration degree courses earned him or her knowledge that was a realistic prerequisite to the specific occupation.  The USCIS has even questioned in a different case how a business administration degree is related to the position offered: CEO of a small company.

Through these recent cases and RFEs, USCIS has again found a way to strike back against H-1B employers, this time by focusing on beneficiaries with business administration degrees. While degrees in business administration, especially at the masters level, are considered specialized in their own right like law or medicine, and are routinely sought by employers, the USCIS’s attitude is not in keeping with the real world.  USCIS is no longer accepting at face value that a business administration degree would prepare an individual to perform the duties of positions in fields such as business management, systems analysis, financial management, and management analysis.  This would also adversely impact entrepreneurs who are petitioned through their own startups, even though an MBA program equips one with the specialized knowledge and skills to be an entrepreneur.  USCIS’s skeptical attitude toward the business degree also runs counter to its Entrepreneur in Residence policy, which is has actively promoted in recent years.

When the candidate holds a business administration degree, employers and attorneys should consider whether to provide detailed job duties to demonstrate the complexity of the position, explain how the degree is directly related to the position, and perhaps obtain an evaluation of the position and degree requirements from a professor or official with authority to grant college-level credit for training/experience in the specialty at an accredited college or university.  And when the minimum requirements are in disparate fields, the employer should strive to explain clearly how each field is related to the position.  And, further, if the argument is made that the position is complex and unique, employers should offer an appropriately mid- to high-level wage.  Overall it appears USCIS has unfortunately placed a target on the business administration degree and employers should beware of nasty RFEs and even denials.