Mid-February 2018 Immigration Update

Headlines:

  1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission – Four immigration bills failed in the U.S. Senate, and a House bill appears doomed. Also, a second court enjoined DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The decision included certain limitations.
  2. President Trump Calls for Establishment of National Vetting Center – President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”
  3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule – A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”
  4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces – Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, USCIS announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018, and will take a “flexible” approach.
  5. Alleged P-3 Entertainer Visa Fraud Scheme Busted – The P-3 visa allows entertainers to visit the United States to perform in culturally unique events and deepen U.S. understanding of different cultures. An indictment alleged that defendants choreographed a widespread P-3 visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers.
  6. USCIS To Process Recently Filed Asylum Applications Over Older Ones – USCIS will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.
  7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members – USCIS and DOS implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.”
  8. Firm In the News

Details:

1.      Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission

A bipartisan deal on immigration, the so-called “Common Sense Plan,” failed on February 15, 2018, in the U.S. Senate, 54-45. The legislation would have provided a pathway to legalization for Deferred Action for Childhood Arrivals (DACA) “Dreamers” and provided $25 billion for border security measures, among other things. Reportedly, the Trump administration opposed the deal and had threatened to veto it despite substantial bipartisan support. A White House-supported bill also failed in the Senate, 39-60. The latter bill would have cut family immigration, ended the diversity visa (DV) program, and increased federal removal powers. Two other immigration proposals also failed on February 15.

Sen. John Thune was quoted as saying, “Well, we’ll go back to the drawing board.” Sen. Susan Collins (R-Maine) said she was “very disappointed” and added that “we’ve got real problems that we need to solve.”

Meanwhile, the U.S. House of Representatives is hard at work on a tough bill—the “Securing America’s Future Act,” also dubbed the “Goodlatte bill” after its main author, Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee—that appears not to have sufficient support in either the House or the Senate. Among other things, the bill would provide temporary, renewable legal status to DACA recipients rather than citizenship. It would authorize border wall funding, end family-based immigration, end the DV program, and require employers to use the E-Verify program, among other measures.

Also, on February 13, 2018, the U.S. District Court for the Eastern District of New York became the second court to enjoin DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The court ordered the Trump administration to maintain the DACA program on the same terms and conditions that existed before promulgation of the DACA Rescission Memo, subject to several limitations: the administration need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting advance parole to DACA beneficiaries; and may adjudicate DACA renewal requests on a case-by-case basis.

The court decision is at https://www.nilc.org/wp-content/uploads/2018/02/Batalla-Vidal-v-Nielsen-updated-pi-order-2018-02-13.pdf. A Department of Homeland Security press release issued before the Senate voted on the “Common Sense Plan” is at https://www.dhs.gov/news/2018/02/15/schumer-rounds-collins-destroys-ability-dhs-enforce-immigration-laws-creating-mass.

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2.     President Trump Calls for Establishment of National Vetting Center

On February 6, 2018, President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center (NVC) “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”

A statement issued by the White House said the NVC, to be led by the Department of Homeland Security, “will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.”

The statement says:

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfil that obligation.

The statement is at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-creation-national-vetting-center/.

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3.     Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule

A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”

Among other things, the letter notes that “Rescission of the International Entrepreneur Rule” has been pending review with the Office of Management and Budget since November 17, 2017. “This potential new rule places a dark cloud over IER, as immigrant entrepreneurs are uncertain of how long IER will be in place,” the letter notes:

The rescission rule stifles investment into new companies with foreign-born founders, which ultimately costs the U.S. economy. It also exacerbates an alarming trend of elite entrepreneurs launching successful startups outside the United States. Twenty years ago our country’s share of global venture investment was 90%, but that number has dropped precipitously to 81% in 2006 and to 53% in 2017. In 2016, China was home to six of the ten largest venture capital investments in the world. If we continue to push entrepreneurs overseas, our share of global investment will continue to decrease.

As background, on January 17, 2017, the Department of Homeland Security (DHS) published the International Entrepreneur final rule with an original effective date of July 17, 2017. On July 11, 2017, DHS published a final rule delaying the effective date until March 14, 2018, to allow for a full review of the rule. The Trump administration proposed in late 2017 to rescind the final rule. In December 2017, a federal court ruled in National Venture Capital Association v. Duke that the rule should go into effect because the government had not provided sufficient notice-and-comment for the delay rule under the Administrative Procedure Act.

The full text of the coalition letter is at http://technet.org/press-release/technet-renews-call-for-president-to-preserve-international-entrepreneur-rule. TechNet, with 77 member companies, sent a similar letter to U.S. Citizenship and Immigration Services, available at https://technetorg.app.box.com/s/q9t2kd9y7nr9vj4qbi7zs8ow93g2qept. The court’s decision is at https://www.courthousenews.com/wp-content/uploads/2017/12/Venture-Capital-ruling.pdf. A USCIS statement following the court order is at https://www.uscis.gov/news/news-releases/uscis-begin-accepting-applications-under-international-entrepreneur-rule. Information on how to submit an international entrepreneur application is at https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole.

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4.     Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces

Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, U.S. Citizenship and Immigration Services (USCIS) announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018.

USCIS said it is “maintaining a flexible approach to this issue,” which may include randomly selecting petitions received on the final receipt date “to ensure that we allocate H-2B visas fairly and do not exceed the cap.” USCIS said more information would be forthcoming.

The USCIS announcement is at https://www.uscis.gov/news/alerts/surge-h-2b-petitions-possible-second-half-fy-2018. Information on the cap count for H-2B nonimmigrants is at https://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants.

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5.     Alleged P-3 Entertainer Visa Fraud Scheme Busted

A 15-count indictment was unsealed on February 8, 2018, in federal court in Brooklyn, New York, charging Stella Boyadjian, Hrachya Atoyan, and Diana Grigoryan, also known as “Dina Akopovna,” for their roles in a multi-year visa fraud scheme that brought Armenian citizens into the United States for profit. The defendants are charged with multiple counts of visa fraud and with conspiring to defraud the United States, commit visa fraud, and illegally bring undocumented persons into the United States. Boyadjian and Grigoryan are also charged with related money laundering, and Boyadjian is charged with aggravated identity theft.

As alleged in the indictment, the defendants choreographed their widespread visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers to deceive a government program that allows foreign nationals to temporarily enter the United States as artistic performers in the P-3 visa category. That category allows entertainers to visit the U.S. to perform in culturally unique events and to deepen U.S. understanding of different cultures.

Boyadjian allegedly ran a nonprofit organization called Big Apple Music Awards Foundation Inc. (BAMA), based in Rego Park, New York, which she and her co-conspirators used to further their visa fraud scheme. As part of the alleged scheme, the defendants and their co-conspirators solicited undocumented persons and charged them fees ranging from $3,000 to $15,000 per applicant to fraudulently obtain P-3 visas by submitting false Forms I-129 and supporting documents to U.S. Citizenship and Immigration Services. Upon approval of the I-129 petitions, the defendants and their co-conspirators acquired fraudulent dance certificates and organized staged photo sessions where foreign nationals wore Armenian dance costumes to make it appear as though they were traditional Armenian musicians, singers, and performers. After being trained how to falsely answer questions during visa interviews, the P-3 visa applicants presented these fake certificates and photos during their P-3 visa interviews. Once in the United States, some beneficiaries of the P-3 visas paid the defendants an additional fee to be included in applications for extensions of their fraudulently obtained visas. The defendants furthered their visa fraud scheme by creating flyers and other documents purporting to hold BAMA-sponsored concerts and events in the United States.

USCIS’ announcement is at https://www.uscis.gov/news/news-releases/three-individuals-indicted-visa-fraud-scheme-profit.

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6.     USCIS To Process Recently Filed Asylum Applications Over Older Ones

U.S. Citizenship and Immigration Services (USCIS) announced recently that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog. The agency said it faces a “crisis-level backlog” of 311,000 pending asylum cases as of January 21, 2018, making the asylum system “increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.”

To address this issue, USCIS said it will follow these priorities when scheduling affirmative asylum interviews:

  1. Applications that were scheduled for an interview but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
  2. Applications pending 21 days or fewer since filing; and
  3. All other pending applications, starting with newer filings and working back toward older filings.

Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.

USCIS said this priority approach was used for 20 years until 2014, and “seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization.” Returning to a “last in, first out” interview schedule will allow USCIS “to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings,” USCIS said.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog. Information on affirmative asylum interview scheduling is at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling.

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7.     USCIS, DOS Tighten Screening Procedures for Refugees and Family Members

On February 1, 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of State implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.” A following-to-join refugee is the spouse or child of a principal refugee who lives abroad and wishes to join the principal refugee in the United States.

These measures were implemented following a 120-day review mandated by Executive Order 13780, which directed the Department of Homeland Security to determine what additional procedures should be implemented to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.

According to USCIS, new measures that apply to following-to-join refugees processed overseas include:

  • Ensuring that following-to-join refugees receive the full baseline interagency screening and vetting checks that other refugees receive.
  • Requesting that the following-to-join refugee submit his or her Form I-590, Registration for Classification as Refugee, in support of the principal refugee’s Form I-730, Refugee/Asylee Relative Petition, earlier in the adjudication process. USCIS or the Department of State will contact petitioners directly to request this information.
  • Vetting certain nationals or stateless persons against classified databases.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-strengthening-screening-family-members-abroad-seeking-join-refugees-united-states. A related Department of State memorandum is at https://www.dhs.gov/sites/default/files/publications/17_1023_S1_Refugee-Admissions-Program.pdf. A report required by Executive Order 13780 is at https://www.justice.gov/opa/press-release/file/1026436/download.

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  1. Firm In The News

Cyrus D. Mehta was the Program Chair, Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Related Relief, Practicing Law Institute, New York, NY and via Webcast, February 9, 2018.

Cyrus D. Mehta was the Program Chair and Speaker, Basic Immigration Law 2018, Practicing Law Institute, New York, NY and via Webcast, February 8, 2018.

Cyrus D. Mehta was a Moderator, Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy, American Bar Association 2018 Midyear Meeting, Vancouver, February 3, 2018.

Cyrus D. Mehta was a Speaker, Ten Changes President Trump Has Made Without Immigration Legislation, teleconference (with Greg Siskind) sponsored by the Alliance of Business Immigration Lawyers, January 25, 2018.

Cyrus D. Mehta published The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification along with Sophia Genovese on February 6, 2018.

Cyrus D. Mehta published The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir along with Sophia Genovese on February 12, 2018.

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)