Rodriguez Tovar v. Sessions: The Ninth Circuit Holds That a Child Sponsored By a Lawful Permanent Resident Should Not Be Penalized For The LPR Parent’s Naturalization

Becoming a U.S. citizen is often thought of as an admirable act, something that our immigration and naturalization laws encourage qualified applicants to do.  According to the Board of Immigration Appeals (BIA), however, in at least one relatively common fact situation, our immigration laws actually discourage naturalization, by penalizing children of the naturalized parent.  The BIA held in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011), that an applicant for adjustment of status was ineligible for that relief essentially because of his mother’s naturalization, which the BIA believed led to less favorable treatment of his case under the Child Status Protection Act (CSPA) than would have occurred if his mother had remained a Lawful Permanent Resident (LPR). In Rodriguez Tovar v. Sessions, however, the Court of Appeals for the Ninth Circuit recently rejected Matter of Zamora-Molina and held that an otherwise CSPA-protected child did not lose that protection due to his LPR parent’s naturalization.

This author and Cyrus D. Mehta have frequently blogged in the past about the CSPA (see also here, here, and the tagged lists here and here), and I will not seek to describe here the entire statute and all of the provisions that it introduced into the Immigration and Nationality Act (INA). However, some brief background regarding the portions of the CSPA involved in Zamora-Molina and Rodriguez Tovar is necessary in order to appreciate the Ninth Circuit’s decision.

Certain categories of visa petition apply to a “child” as defined in INA §101(b)(1), that is, “an unmarried person under twenty-one years of age” who meets one of several other criteria with respect to the petitioning parent. Under INA §203(h)(1) as added by the CSPA, the age of a beneficiary of a Family 2A preference petition filed for a child of an LPR under INA §203(a)(2)(A), or the age of the derivative beneficiary child under INA §203(d) of other types of petitions, is determined by taking the child’s age on the date when a visa number became available (as long as the child seeks to acquire LPR status within one year of that date), and subtracting the number of days during which the petition was pending with USCIS. Another way to look at it is that it is as though the child stops getting older when the petition is filed, and only starts again after the petition is approved, and then stops getting older once again when a visa number becomes available.  If this adjusted age is under 21, then the child, as long as he or she is unmarried, can continue to be processed in the Family 2A preference (or as a derivative beneficiary), because he or she is still a “child” under the definition at INA §101(b)(1). The waiting time for an available visa number under the Family 2A preference for under-21-year-old children of LPRs is generally shorter than the waiting time for an available visa number under the Family 2B preference for over-21-year-old sons and daughters of LPRs, as shown in the State Department’s Visa Bulletin, so there is a significant advantage in that context to remaining a “child”.

The question is what happens to such a beneficiary of a Family 2A preference petition when the sponsoring parent becomes naturalized as a U.S. citizen. According to INA §201(f)(1) of the INA, also added by the CSPA, the age of a child who is the beneficiary of a petition as the immediate relative of a U.S. citizen (a category for which there are an unlimited number of visas available and thus no Visa Bulletin waiting line) is generally determined on the date the petition is filed. However, the next paragraph of the statute provides that

In the case of a petition . . . initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative . . . the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent’s naturalization.

INA §201(f)(2). That is, when an LPR parent who has filed a petition for their child later naturalizes, the child’s age is frozen as of the date of the parent’s naturalization.  But the question then arises, is the statute’s reference to “the age of the alien on the date of the parent’s naturalization” a reference to the child’s biological age, or to the child’s adjusted age under INA §203(h)(1)?

In Matter of Zamora-Molina, the BIA opted for the former answer, holding that the child’s biological age was the relevant age under INA §201(f)(2). Daniel Edgar Zamora-Molina had been biologically 22 when his mother naturalized, but it had previously taken more than two and a half years for the petition filed on his behalf to be approved.  Thus, his CSPA-adjusted age at the time of naturalization was less than 20, under INA §203(h)(1), but his biological age at that time was over 21. The BIA held that Mr. Zamora-Molina could not adjust status as an immediate relative of his mother, but would need to proceed under the Family 1st Preference category for sons and daughters, over age 21, of U.S. citizens.  The BIA also refused Mr. Zamora-Molina’s request to opt out of the conversion of his case to the Family 1st Preference under INA §204(k), which allows certain family preference beneficiaries to opt out of the effect of their parent’s naturalization, because the BIA held that §204(k) only allowed opting-out that resulted in becoming a beneficiary under the Family 2B category for sons and daughters over age 21 of LPRs. Since no visa numbers were available for Mr. Zamora-Molina’s priority date in either the Family 1st Preference category or the Family 2B preference category, given the length of the waiting lines under those categories, the BIA upheld the Immigration Judge’s decision that denied Mr. Zamora-Molina’s application for adjustment of status and instead granted him only permission to depart voluntarily rather than being removed.

Mr. Zamora-Molina argued to the BIA that it was “fundamentally unfair” to apply this law to him, because he would have been eligible for adjustment of status under the Family 2A preference category if his mother had not naturalized. In effect, he was being penalized for his mother’s naturalization.  The BIA, however, interpreted this as a constitutional argument, which it held that it lacked authority to address.

In the case that came before the Ninth Circuit in Rodriguez Tovar v. Sessions, Margarito Rodriguez Tovar faced a similar fact pattern to Daniel Edgar Zamora-Molina. Mr. Rodriguez Tovar’s father had filed a petition for Margarito in April 2001 when Margarito was 17 or 18 years old, which was not approved until more than four years later in 2005, and had then naturalized in July 2006.  At the time his father naturalized, Mr. Rodriguez Tovar’s biological age was 23, but his adjusted age was under 21 for purposes of his Family 2A petition according to the CSPA-adjusted age calculated under INA §203(h)(1), since subtracting more than four years from a biological age of 23 left him with an adjusted age of only 19. Moreover, had his father not become a citizen, Mr. Rodriguez Tovar would have become eligible for a visa number in the Family 2A category less than a year later, in July 2007, when his CSPA-adjusted age was still only 20.

The BIA, however, held in reliance on Matter of Zamora-Molina that because Mr. Rodriguez Tovar was biologically over 21 when his father naturalized, and his father had indeed naturalized, he was only eligible for a visa number in the Family 1st preference or the Family 2B preference, neither of which were available. As the Ninth Circuit summarized the resulting conundrum:

Everyone agrees that if Rodriguez Tovar’s father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category on June 1, 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. However, the government’s position is that because his father decided to become a citizen when he did, Rodriguez Tovar was not eligible for either visa and may now be deported forthwith and must wait in the F1 line abroad.

Rodriguez Tovar, slip op. at 9.

The Ninth Circuit rejected the BIA’s interpretation of the statute which had led to this “irrational” result.  Rodriguez Tovar, slip op. at 12. Looking at the statute as a whole, the Ninth Circuit held that the reference to “the age of the alien on the date of the parent’s naturalization” in INA §201(f)(2) was unambiguously a reference to the age as calculated under INA §203(h)(1), that is, the CSPA-adjusted age. Although §203(h)(1) and §201(f)(2) do not explicitly cross-reference one another, the Ninth Circuit held, those two provisions are tied together by INA §203(a)(2)(A), which each of them does reference, and the three provisions together “form a cohesive whole.” Rodriguez Tovar, slip op. at 14-15. Moreover, the conversion provisions of the statute and regulations, and the absence of an opt-out under INA §204(k) for CSPA-protected F2A beneficiaries to remain in the F2A category, both make more sense if read with the background understanding that Congress expected CSPA-protected F2A petitions to convert to immediate relative cases upon the petitioner’s naturalization.

The Ninth Circuit also justified its interpretation of the interlocking CSPA provisions by reference to the canon of interpretation that statutes should be interpreted to avoid absurd results.  As it explained:

Our interpretation of 8 U.S.C. § 1151(f)(2) [INA §201(f)(2)] makes sense within the context of the whole CSPA. Anyone who is treated as a minor child of a lawful permanent resident for purposes of an F2A petition is treated as a minor child of a citizen when the parent naturalizes, and no one is penalized just because his parent became a citizen. The government’s interpretation leads to the absurd result that Rodriguez Tovar’s father’s naturalization causes the deportation of his son, who is then compelled to wait for decades in a foreign land before he can return—despite the fact that had his father simply remained an LPR, Rodriguez Tovar would have been eligible for a visa within a year. That can hardly have been Congress’s intent.

“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Accordingly, we conclude “that Congress had a clear intent on the question at issue,” The Wilderness Soc’y, 353 F.3d at 1059: children of LPRs may take advantage of the age calculation formula in 8 U.S.C. § 1153(h)(1) [INA §203(h)(1)] for purposes of converting to immediate relative status under § 1151(f)(2) [INA §201(f)(2)] when their parents naturalize.

Rodriguez Tovar, slip op. at 21.

Hopefully, the Ninth Circuit’s compelling arguments may convince other Courts of Appeals, and ultimately perhaps even the BIA or, if the issue is brought there, the Supreme Court.  In the meantime, only those who reside within the jurisdiction of the Ninth Circuit (that is, California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands), and perhaps others whose cases are being processed there such as at the California Service Center, are likely to be able to take advantage of Rodriguez Tovar without going to federal court themselves, and even in those cases there will be some uncertainty regarding the precise conditions under which USCIS will be willing to apply Rodriguez Tovar until we see how they behave in practice.  In cases in which the Zamora-Molina / Rodriguez Tovar issue arises, however, applicants for adjustment of status and their attorneys should consider whether litigation in federal court is an appropriate option.  Other Article III judges, like the Ninth Circuit panel in Rodriguez Tovar, may be less willing than the BIA to read the CSPA to produce the absurd result of penalizing children for the naturalization of their LPR parents.


BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements

Despite the fact that the PERM regulations took effect on March 28, 2005, almost 13 years ago, PERM practitioners continue to struggle with the Department of Labor (DOL) regarding what must be listed in PERM advertisements. Issues surrounding this ongoing battle were discussed in my blogs here, here, here and here. As they say, the struggle is real!

An employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. When a DOL Certifying Officer (CO) chooses to deny a PERM application due to lack of information in the advertisements, there are a few typical sources of authority that could be cited to justify that denial. 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.” Based on this authority, a CO could find that an employer failed to inform US workers of conditions of employment that might have made the position more attractive to them, such as a work from home benefit. Under 20 C.F.R. §656.24(b)(2), the CO must make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Based on this authority, the CO can hold that this decision is impossible to make since the employer failed to provide US workers with a sufficient understanding of the job opportunity thus rendering them incapable of making an informed decision as to whether they would qualify for the offered position. Accordingly, the CO cannot make a determination as to whether or not qualified US workers exist. Another favorite source of authority is 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO will cite this regulation to make the point that, since the employer neglected to sufficiently inform US workers about the job opportunity, then it was clearly not open to all US workers.

Most recently, in Matter of Unicolor, Inc. 2013-PER-00065 (Jan. 26, 2018) the Employer advertised for a permanent position classified under the occupational title of “Sales Representative, Wholesale and Manufacture.” The PERM was audited. The CO then denied the PERM under 20 C.F.R. §§656.24(b)(2)(ii) and 656.10(c)(8) and (9), finding that because the Employer failed to include “must be able to read, write, and speak the Korean language” in its Sunday print advertisements and in its job order, the Employer had not provided U.S. applicants with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. The Employer’s newspaper advertisements had simply stated, “Sales Representative. Apply by mail only to Unicolors, Inc.” In its request for reconsideration the Employer argued that the Preamble to the Final Rule of 20 C.F.R. Parts 655 and 656 gives the Employer the flexibility to draft appropriate advertisements that comply and that lengthy, detailed advertisements are not required by the regulation. The Employer argued that its advertisements sufficiently apprised the potentially qualified applicants of the job. The case was appealed to the Board of Alien Labor Certification Appeals (BALCA).

In describing its responsibility in adjudicating the appeal, BALCA cited a prior case which states, “When the CO relies on §656.10(c)(8) as a basis for denying an application due to deficiencies in an employer’s recruitment advertising, the Board must determine whether any discrepancies between the job requirements listed in the Form 9089 and the Employer’s recruitment advertisements ‘so misinformed potential job applicants about the [position] that this aspect of recruitment undermines the attestation that the job opportunity is clearly open to any U.S. worker.’” Enterprise Software Solutions, Inc., 2012-PER-02118 (Nov. 16, 2016) (citing Cosmos Foundation, Inc., 2012-PER-01637, slip op. at 7 (Aug. 4, 2016)).

BALCA found that its recent panels, in applying this §656.10(c)(8) analysis, reversed PERM denials when the Employer’s advertisements merely omitted information. BALCA referred to Cosmos Foundation, Inc., where the Employer advertised for the position of Social Studies Department Chair asking simply for 24 months of experience. On the PERM application, the Employer indicated that it would accept 24 months experience in the offered position or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” The CO reasoned that the Employer had not provided U.S. workers with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. However, BALCA pointed out that the Employer’s advertisements did not actually misinform US workers about the job opportunity or deter qualified candidates from applying. A US worker with relevant teaching experience would still apply for the position whether or not that worker had experience as a Social Studies Department Chair or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” BALCA found that the Employer’s omission of the acceptable alternate job experience in its advertisements did not “chill” potentially qualified candidates’ interest in the job opportunity.

BALCA also referred to DNG Technologies, Inc. 2012-PER-01647 (Feb. 25, 2016) where the CO denied the PERM application finding that the Employer’s advertisement on its website failed to apprise interested applicants of the geographic area of employment. The CO argued that §656.10(c)(8) requires website advertisements to comply with the criteria set forth in §656.17(f), including §656.17(f)(4), which mandates that advertisements must “[i]indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” But BALCA pointed out that the Board has ruled §656.17(f) applies only to advertisements placed in newspapers of general circulation or professional journals. Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) (which I previously blogged about here). Because §656.17(f)(4) does not govern the additional forms of professional recruitment, it does not necessarily follow that omitting the area of geographic employment from an employer’s website advertisement establishes that the job was not clearly open to US workers. BALCA stated that the relevant inquiry under §656.10(c)(8) is whether the Employer’s website advertisement so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker. BALCA found that interested applicants were not misinformed about the location of the offered position, they simply were not informed about the geographic area of employment and although a statement of the location of the employment might have been useful information for job seekers, its omission did not support a determination that the job opportunity was not clearly open to US workers.

Based on these two cases, BALCA found that the Employer in Unicolors merely omitted the information that the qualified candidate must be able to read, write, and speak the Korean language. The Employer, while it could have been more specific in its advertisements, did not overstate or mischaracterize the job requirements and the regulations do not require that the Employer enumerate every job requirement in its advertisements.  Killing any potential argument that Korean speakers who were out there just dying for a job where they could utilize their Korean were deterred from applying for the offered position simply because the Employer failed to inform them that applicants for the Sales Representative position needed to be fluent in Korean, BALCA pointed out that the regulations do not require that employers craft their advertisements to foreclose all possible reasons why a qualified applicant may not apply for a certain job. A US worker with the ability to read, write and speak Korean would still apply for the job if they were interested in a position as a Sales Representative!

It can become truly exhausting to always prepare PERM applications defensively; to always try to stay one step ahead of the DOL and to imagine new reasons for denial. It is therefore quite encouraging to read these types of BALCA decisions which reward employers for their good faith recruitment and where the US worker is not painted as so easily “deterred’, “confused” and “adversely affected.” Having said that, PERM practitioners know well that in trying to ensure a smooth PERM process, the best course of action is to include as much relevant information in the advertisements as possible and to endeavor to keep advertisements identical across the board. But for the times when that is not the case, these decisions provide some hope.

The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir

By Cyrus D. Mehta and Sophia Genovese

Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend this person with handcuffs and expel them from the country.  ICE may also decide to make a pre-dawn arrest of an undocumented person at home in front of family members including children, arrest  those who are attempting to regularize this status, or even victims of domestic violence seeking to escape their abusers.

Or if this person is an activist protesting against ICE’s tactics and fighting for the rights of immigrants, ICE could retaliate by arresting him or her with the goal of removing this so called “irritant” from the United States.  Indeed, no one appears to be beyond the reach of ICE’s heavy handedness in the Trump era.

At issue is whether a removable person has been allowed to stay in the US, and regularly report to ICE, can this person one day be suddenly apprehended without the chance to say goodbye to his family?

This was the very issue raised in Ragbir v. Sessions before Judge Katherine B. Forrest in a petition for habeas corpus in the United States District Court for the Southern District of New York. Ravi Ragbir has lived in the US for over 25 years, but in the last ten years was subject to a final order of removal based on a deportable criminal conviction. Because of his special contributions to the community as the Executive Director of New Sanctuary Coalition of New York City, ICE until recently allowed him to remain in the US with his citizen wife and daughter, granting him an order of supervision and four administrative stays of removal. On January 11, 2018, however, while the administrative stay was still in place, ICE suddenly and inexplicably detained him during a routine check in.

Mr. Ragbir’s petition for habeas corpus was granted. The decision in Ragbir v. Sessions is astounding as it acknowledged the right of a removable person to say goodbye to loved ones and leave in an orderly and dignified fashion, especially one who did not pose a flight risk, was not a danger to the community and who was routinely checking in with ICE. The Court wrote that “[i]t ought not to be – and it has never before been – that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust.”

Although the Court’s decision granting the habeas corpus petition was thin on legal authority, it broadly relied on the Fifth Amendment’s liberty and due process guarantees. “In such circumstances, the Fifth Amendment’s liberty and due process guarantees are North Stars that must guide our actions,” the Court eloquently stated. Although Mr. Ragbir had a final order of removal, “his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him form his family and community without a moment’s notice.” He should have at the very minimum been given to understand that he must organize his affairs and leave by a due date.

As this victory was being celebrated, Mr. Ragbir was still required to report to ICE for removal on February 10, 2018. This would have possibly been in compliance with Judge Forrest’s order that he be asked to leave by a due date in an orderly fashion rather than suddenly arrested and separated from his family. However, Mr. Ragbir, together with New Sanctuary Coalition of New York City, CASA de Maryland, Detention Watch Network, the National Immigration Project of the National Lawyers Guild, and the New York Immigration Coalition filed suit on February 9, 2018, Ragbir v. Homan,  in the Southern District of New York to challenge the recent targeting of immigrant rights activists by federal immigration officials. The government has agreed to stay Mr. Ragbir’s deportation temporarily pending further briefing in this action. The lawsuit seeks, among other forms of relief, a preliminary and permanent injunction restraining the government from taking further action to effectuate a deportation order against Mr. Ragbir, while also seeking a preliminary and permanent injunction restraining the government from selectively enforcing immigration laws against individuals based on protected political speech.

It is hoped that Mr. Ragbir’s case will shine the torch on the draconian impact of deportation on the individual and the family that is left behind in the US. There have been far too many instances where removable persons have been suddenly and abruptly plucked from their families without giving them a chance to leave in an orderly and dignified fashion, or to consider allowing them to remain while they collaterally challenge their deportation orders or seek to reopen them. And as was done under the President Obama administration, allow such people to remain in the US if they have family members and have lived a life without incident apart from the ground that caused their deportation order. It is important for all of us to examine our collective morality when the government preys upon the most vulnerable populations among us.

As early as 1945, the Supreme Court in Bridges v. Wixon held:

Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times, a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.

Under our immigration system, people may be removed for a number of reasons. In Mr. Ragbir’s case, although he was a lawful permanent resident, his order of deportation was based upon a felony conviction for wire fraud in 2001. Mr. Ragbir paid his dues for that conviction under the criminal justice system. If Mr. Ragbir had been a citizen, he would not have been in this predicament. But because of his non-citizen status, he was also put in removal proceedings and thus was punished further for his criminal conviction even though as a citizen he would not be. A deportation proceeding is a civil proceeding, and the purpose is to remove the non-citizen rather than to punish, and yet it ironically results in a far greater punishment than the criminal proceeding.

Others are removed simply for not being in lawful status. It is a myth that undocumented immigration can be controlled or eliminated. Indeed, undocumented immigration is an inexorable outcome of restrictive immigration policy, a situation bound to worsen under the Trump Administration’s proposals to severely limit legal pathways. No matter how many more ICE agents that the Trump administration may add to enforce immigration law, there will always be undocumented immigrants who will desperately try to stay in the US to be with loved ones.

If ICE enforces the law harshly and egregiously, they will be even less effective as law suits like Mr. Ragbir has filed will push them back, as we have already begun to see in courts in Southern California and New Jersey. Judge André Birotte in Los Angeles, ruling on the unconstitutionality of ICE detainers (requests to local law enforcement to detain an individual for an additional 48 hours so ICE may decide whether or not to place the individual into removal proceedings), wrote “The LASD [Los Angeles County Sheriff’s Department] officers have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individuals’ Fourth Amendment rights.”  Judge Esther Salas in New Jersey temporarily halted the deportation of Indonesian Christians with “administratively final orders of removal predating 2009 and were subject to an order of supervision,” pending further adjudication of their claims. As the ACLU has argued, “This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here.”

No amount of cruel and egregious enforcement measures can eliminate undocumented immigration. Rather, having sensible immigration laws that allow foreign nationals to more easily legalize their status will be more effective in solving the undocumented immigration problem in America, and would be more consistent with its values. This would be a better way to deal with the issue rather than to cruelly pluck people away from their families in violation of their rights and liberties enshrined in the Constitution.

The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification

By Cyrus D. Mehta and Sophia Genovese

As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

In Matter of B-C-, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3. According to the DOL’s Prevailing Wage Policy Guidance, referenced in the Matter of B-C- decision, Level I (entry) wage rates

…are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009).

The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition. The Director, instead, should have compared the proffered job duties to those associated with the appropriate Occupational Information Network (O*NET) occupation.  On appeal, Petitioner asserted that an EIT is entry level by its very definition. The AAO acknowledged that by its plain terms, an EIT appeared to be entry-level, but a hasty review would be insufficient. In order to determine whether Petitioner properly selected a Level I wage, the AAO analyzed whether Petitioner selected the most relevant standard occupational classification (SOC) code, and then compared the experience, education, special skills required, and any other requirements provided in the petition and O*Net classification. Here, the description and tasks in O*NET for civil engineer generally coincided with the proffered job duties, concluding that the Petitioner selected the appropriate SOC code.  Next, the AAO analyzed whether the proffered position required experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation. Here, the AAO found that the proffered position did not require more education, experience, special skills or supervisory duties beyond what was listed on O*Net, and, thus, was properly classified as a Level I wage.  The appeal was sustained.

In Matter of G-J-S-USA, Inc., the Petitioner sought to temporarily employ the Beneficiary as an investment banking analyst under the H-1B classification. Matter of G-J-S-USA, Inc.  The Director denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition where (s)he believed that the designated Level I wage was incorrect.  On appeal, the Petitioner asserted that an incorrect methodology was used. Id. Although the AAO found that USCIS erred in its methodology by comparing the job duties of the proffered position to the definition of a Level I wage given in the DOL’s guidance, the AAO ultimately held that the Level I wage assignment was indeed improper.

The AAO explained that the Director should have applied the five-step process outlined in the DOL’s prevailing wage guidance which required comparing the experience, education, special skills, and supervisory duties described in the O*NET description to those required by the employer for the proffered position. After employing the proper analysis, the AAO found that the assignment of a Level I wage was improper, and that the petition was thus not approvable. The Petitioner had specifically failed on step three, which involved a comparison of the education requirements. The Petitioner’s stated minimum education requirement was a master’s degree in finance or a related field. Appendix D of the DOL guidance, however, indicates that the usual education level for a financial analyst was a bachelor’s degree. According to the AAO, the master’s degree requirement warranted a one level increase in the wage and the appeal was dismissed. Id.

Critically, the AAO highlighted in both cases that there is no inherent inconsistency between an entry-level position and a specialty occupation. Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. On the other hand, according to the AAO, the key issue is whether the LCA corresponds to the H-1B petition. If the wage on the LCA does not correspond to duties and requirements described in the H-1B petition, then the H-1B petition can be denied.

It is indeed salutary that the AAO confirms that H-1B eligibility cannot be denied solely on the ground that a proffered position is classified as a Level I wage. There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. Still, the AAO substituting its purported expertise for the DOL’s expertise in determining wage levels on the LCA is of great concern. The AAO stated, “When assessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL’s responsibility with respect to wage determinations.” But the AAO did precisely just that in Matter of G-S-J-USA, Inc. by usurping what DOL knows how to do best, which is making a wage determination.

The AAO relied on Appendix D in the prevailing wage guidance that provides a list of professional occupations with their corresponding usual education. If an occupation requires only a bachelor’s degree in Appendix D, and the employer requires a Master’s degree, which was the case in Matter of G-S-J-USA, Inc., then according to the DOL guidance, the employer is required to increase the wage level by one notch even if there is no experience requirement. It is not clear from the AAO decision whether it selected the appropriate occupation under Appendix D, which again is in the realm of DOL’s expertise. Even assuming the AAO arrived at the correct comparable occupation under Appendix D and the employer did not bump up the wage level, this ought to be considered as an LCA violation, which the DOL to deal with in the event of an LCA audit, and should not undermine the employer’s ability to employer the worker in a specialty occupation, resulting in USCIS outright denying the H-1B petition.

The two new AAO decisions teach that it may be a best practice for an employer to request and obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center prior to filing an LCA. As a practical matter, though, obtaining such a prevailing wage determination can take several weeks, and employers must timely file H-1B petitions within the first five business days of April each year to be considered under the H-1B lottery, or in the case of an extension, before the current H-1B status expires, or before the H-1B worker wishes to port to a new employer. In the event the employer disagrees with the NPWC determination, an appeal to the Board of Alien Labor Certification can take several months.  It is thus important to check Appendix D before the employer decides to require a Master’s degree and still pay a Level 1 wage.  On occasion, a position may require, at a minimum, an advanced degree. For example, a law degree is required for minimum entry into legal profession. However, an employer seeking to employ a new graduate would still be allowed to pay an entry level wage to the prospective employee under the DOL guidance. For lawyers, the DOL acknowledges that prospective employees need a professional degree prior to entering the profession, and thus a Level I wage is appropriate for an entry-level attorney position. Similarly, Market Research Analysts, Economists, and Urban Planners, among others, typically require a Master’s degree, for entry into the field. Attention should also be paid to other factors that may cause a bump up in the wage level, such as special skills or language requirements that may not be consistent with the skills listed in O*Net for a specific occupation. Thus, if the employer requires a foreign language skill, it may or may not need to bump up the wage level depending on whether a foreign language is inherently required for the job but which does not increase the complexity or seniority of the position. All this further confirms the point we make that assessing whether there is an excessive educational requirement or a skill lies within DOL’s rather than USCIS’s expertise.

Still, until the AAO changes its position, employers must carefully review the DOL Wage Guidance and Appendix D when assigning a wage on the LCA in the brave new world of H-1B adjudications in order to stave off a needless denial!

(The authors acknowledge the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)