Cora-Ann Pestaina

Recent H-1B Case Brings Hope that Reliance of the Umbrella “All Other” Occupational Classification Need Not Be Fatal

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As the U.S. Citizenship and Immigration Services (USCIS) continues its shameful and relentless attack on the H-1B visa program under the misguided “Buy American Hire American” Executive Order, it is important that we continue to fight back and cases like Relx Inc. v. Baran give us the hope that we need in order to do so.

As background, with every H-1B petition, the petitioner must file a Labor Condition Application (LCA) with the Department of Labor (DOL) listing the most appropriate occupational classification for the offered position. This classification is represented by the Standard Occupational Classification (SOC) code. Naturally, there isn’t an SOC code for every single occupation. Therefore, H-1B petitioners must choose from a limited list of SOC codes. Recognizing that it could not realistically cover every single occupation, the DOL created certain umbrella categories called “All Other” which represent occupations with a wide range of characteristics that do not fit into a specific detailed SOC. USCIS will often pounce on H-1B petitions where the petitioner has chosen an SOC code representing an “All Other” classification. There are times when the employer has no choice as the  occupation, especially emerging ones, fit under “All Other” only. USCIS often issues a Request for Evidence (RFE) stating that the DOL’s Occupational Outlook Handbook (OOH) “does not contain descriptions for this position” and therefore it has not been established that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

In order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normallythe minimum requirement for entry into the particular position;
  2. The degree requirement is commonto 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 normallyrequires 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.

8 CFR § 214.2(h)(4)(iii)(A).

We have blogged extensively, see here, here, and here,   about the H-1B specialty occupation criteria and the difficulties faced by H-1B petitioners in demonstrating that an offered position is indeed a specialty occupation. Despite the fact that there is no existing regulation designating the OOH as the bible on specialty occupations and the OOH even includes its own disclaimer advising that it should not be used for any legal purpose, the USCIS nevertheless frequently issues RFEs and denials on H-1B petitions based on the fact that the OOH does not include a definitive statement that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

In Relx, the plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a Data Analyst for Lexis Nexis in F-1 student status, alleged that USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act (APA) when they denied LexisNexis’ H-1B petition on behalf of the Data Analyst concluding that the position was not a specialty occupation. The U.S. District Court for the District of Columbia granted summary judgment for plaintiffs and denied defendants’ motion to dismiss. The proffered position had been classified under the occupational title of Business Intelligence Analysts which bears the SOC code of 15-1199.08 and falls under the more general occupational title of “Computer Occupations, All Other” with the SOC code of 15-1199. The USCIS is well aware that because the DOL has not amended its LCA to also accept 8 digit SOC codes, H-1B petitioners are not able to classify their offered positions using 8 digit SOC codes and must instead utilize the more general occupational title bearing a 6-digit SOC code. Accordingly, in Relx, the petitioner used the SOC code for “Computer Occupations, All Other” but explained that the most specific classification was Business Intelligence Analysts. The petitioner also referenced O*NET, which contains a detailed description of the Business Intelligence Analyst occupation relevant to the inquiry on whether or not the position is a specialty occupation. Similar to the OOH, O*NET is a database which serves as a library for information on the working world and it includes information on the knowledge, skills, abilities, interests, preparation, contexts, and tasks associated with over 1,000 occupations.

In a typical move, USCIS disregarded all this and in its denial of the petition stated that the OOH does not contain detailed profiles for the computer occupations category and that the petitioner’s reference to O*NET, standing alone, failed to establish that the occupation was a specialty occupation. The court found this conclusion to be “factually inaccurate and not supported by the record.” The court pointed out that the OOH does explain that that the typical entry level education for “Computer Occupations, All Other” is a “Bachelor’s Degree (see here) and inasmuch as the OOH did not contain a detailed profile for the computer occupations category, it contained an explicit O*NET crosswalk reference and O*NET stated that “most of these occupations require a four-year bachelor’s degree but some do not” with further detail that more than 90% of employees in the occupation require at least a bachelor’s degree.

Overall, the Relx case also demonstrates how determined USCIS can be in its effort to deny these H-1B petitions. Upon receipt of the denial, plaintiffs filed suit but shortly before they filed their opening motion, the government reopened the petition without providing any notification or reason and issued a second RFE. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had already reopened the case! Among other things, the court noted that the government’s failure to set forth its reasons for a decision to reopen the denial constitutes arbitrary and capricious action, and the court must undo the agency action. The court pointed out that the government issued another RFE requesting nearly identical information as it did when it last reviewed the petition. Also, the Data Analyst’s F-1 visa was set to expire and she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship.” The court found the government’s reopening of the case to be “highly suspect and contrary to the regulations” since no new information was requested and that the petitioner had already submitted a “mountain of evidence” that “more than meets the preponderance of the evidence standard.” The court held that the USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the Data Analyst.

In our past blogs (for example, here), we have encouraged H-1B petitioners facing these challenges to be fearless and to go directly to federal court. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the Administrative Appeals Office (AAO) and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Most recently, we followed our own advice and filed a complaint in federal court in a case, very similar to Relx in that it involved the petitioner’s use of the “Computer Occupations, All Other” category; a foreign national in F-1 status and an arbitrary and capricious denial that, among other things, stated that where the occupation listed on the certified LCA was not listed in the OOH,  the petitioner could not support its assertion that the position was a specialty occupation by reference to the O*NET. Even the expert opinion of a college professor was rejected. Despite the duties being described in a detailed manner to demonstrate their complexity, the USCIS cherry picked a few words and phrases from the job duties to erroneously conclude that they did not require the qualified person to possess a Bachelor’s degree or higher in the enumerated fields.  In the end, USCIS reopened the case and issued a second RFE, basically identical to the first one. Petitioner responded to the RFE in great detail, with additional expert opinions, and the case was approved.

Based on the number of denials that employers have experienced in recent times, the H-1B process can seem daunting especially when filing cases which must be classified under one of the “All Other” umbrella categories. In these cases, an RFE is expected and that may be followed by a denial. Hopefully not anymore, as we now include a discussion of the court’s decision in Relx. But at the end of the day, these cases demonstrate that we mustn’t be afraid to sue. The Relx decision proves that federal judges can very well have a different reaction than the typical USCIS adjudicator and may be shocked and angry at USCIS’ actions.

 

David Isaacson

“An Act of Cruel Injustice”: If the Trump Administration is Relying on Grudging Court Acceptance of Cruel Results as Support for the New Public Charge Rule, What Does That Say About the Rule?

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The Trump Administration’s new public charge rule has already been the subject of at least five different lawsuits, including one from a coalition of 13 states led by Washington, another from a California-led coalition of 4 states and the District of Columbia, and another from a coalition of 3 states led by New York, plus one from a coalition of nonprofit organizations.  There is a lot to say about the rule, which spans 217 pages of the Federal Register, and the various plaintiffs as well as a number of commentators and organizations have already said a great deal of it.  In this blog post, however, I want to focus on one particular thing I noticed while reading through the rule and checking some of its citations: the harsh terms in which the sorts of actions sought to be justified by the rule were described even by one of the authorities relied upon by the Administration to support it.

At page 77 of the above-linked PDF version of the rule, which is page 41,368 of Volume 84 (No. 157) of the Federal Register, the rule cites four cases in footnote 407 in defense of the proposition that considering disability in public charge determinations “is not new and has been part of public charge determinations historically.”  One of those cases is United States ex rel. Canfora v. Williams, 186 F. 354 (S.D.N.Y. 1911), which is described in the citation as “ruling that an amputated leg was sufficient to justify the exclusion of a sixty year old man even though the man had adult children who were able and willing to support him.”  Lest the reader think I am unfairly cherry-picking an antique citation, the other three cases cited in the same footnote are from the years 1911, 1919, and 1922.

An imperfect copy of the U.S. ex rel Canfora v. Williams decision, with typographical errors possibly resulting from the use of Optical Character Recognition to convert scanned pages into text, is available from the Caselaw Access Project of Harvard Law School, although for a completely accurate copy it appears necessary to consult a paid service like Westlaw or Lexis.  The only error in the portion of the ruling which I am about to quote is one minor misspelling, however, so what I am about to say can be verified from freely available public sources.

In a strictly technical sense, it is perhaps defensible for the Administration to have described U.S. ex rel. Canfora v. Williams as holding that the habeas petitioner’s amputated leg was “sufficient” to justify his exclusion, but this only tells part of the story.  The opinion in the case also says:

I consider that, if this order of deportation is carried out, it will be an act of cruel injustice. If this alien had remained in this country, he probably never would have been molested. If he had not lost his leg, he probably would not have been detained on his return. No offense is charged against him. It is proposed to deport him because he has suffered a pitiable misfortune, and notwithstanding a proposition to give a satisfactory bond, which would appear to be a complete protection to the government from his becoming a public charge. But the immigration acts confer exclusive power upon the immigration officials to determine such questions, and the courts, so long as the procedure prescribed by the immigration acts’ and the rules established for their administration is substantially followed, have under the decisions of the United States Supreme Court no jurisdiction to interfere. I am therefore compelled to dismiss this writ. But I desire to express the hope that the immigration authorities will reconsider this case. I cannot believe that on a candid reconsideration of this record this man, who is charged with no offense, will [b]e sent away, because he has suffered a grievous calamity and has been denounced by a malicious enemy, to pass his last years and to die in a distant land, far from his wife and children, and from the home in this country in which he has lived a blameless life for so many years.

Canfora, 186 F. at 356-357.

This is hardly a ringing endorsement of the decision to exclude the unfortunate sixty-year-old man in question following his trip to Italy to visit his mother.  It is, rather, a grudging acquiescence on account of a narrow view of the courts’ jurisdiction to review the action of the immigration authorities.  The law of judicial review of agency action has come a long way in the 108 years since Canfora was decided, however, and it does not appear that the Administration was relying on Canfora for that point.  Rather, the citation in the public charge rule seems to suggest that the court in Canfora found the exclusion substantively justified.  That is, to put it mildly, a tendentious reading of the court’s opinion.

What does it say about the new public-charge rule that among the authorities relied upon in support of it is a case describing the relied-upon outcome as “an act of cruel injustice” which the author of the opinion “cannot believe” would survive a “candid reconsideration” of the record?  There are a few alternatives that I can think of, but none of them reflect well on the rule.

Perhaps the authors of the rule were sloppy in their haste to get the rule published: it has been reported that White House adviser Stephen Miller was anxious for the rule to be finalized and told one official working on the rule that “I don’t care what you need to do to finish it on time.”  Perhaps they were scraping the bottom of the proverbial barrel looking for authority which they could use to defend the indefensible.  Or perhaps, as Adam Serwer wrote in an Atlantic article regarding other Trump Administration policies, the cruelty is the point.  Whatever the explanation, the fact that the public charge rule would resort to citing a case like Canfora for support is further evidence of its deeply problematic nature.

Cora-Ann Pestaina

Recent BALCA Cases Highlight the Importance of Choosing the Right Sunday Newspaper

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In June 2019, the Board of Alien Labor Certifications Appeals (BALCA) issued at least ten decisions that addressed the employers’ choice of Sunday newspaper in the PERM labor certification recruitment process. So maybe they wanted to make a point? Let’s discuss.

As background, an employer must conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. The PERM recruitment process, whether for a professional or a nonprofessional position, requires employers to place two Sunday advertisements in a newspaper of general circulation. As PERM practitioners, having read the regulations, how confident are we on advising employers regarding which newspaper to use for Sunday ads? Some New York practitioners say that they always advise employers to use the New York Times. Others say they’ve successfully used the Daily News but have felt scared each time. What about the New York Post?  Over the years the question just keeps coming up. The Department of Labor (DOL) has not provided any specific guidance. One FAQ contains the following question and answer:

Question:         What is considered an acceptable newspaper and/or acceptable journal and is there a published list?

Answer:            There is no published list of acceptable publications.

Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers…that are most likely to bring responses from able, willing, qualified and available U.S. workers.

I am not sure if the newspapers are as readily identifiable as the DOL expects.

For nonprofessional positions, 20 C.F.R. 656.17(e)(2)(ii) requires that the employer place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.” For professional occupations, there is the added requirement that the newspaper be “most likely to bring responses from able, willing, qualified, and available U.S. workers.” See 20 C.F.R. 656.17(e)(1)(i)(B)(I). A nonprofessional occupation is defined as any occupation for which the attainment of a bachelor’s or higher degree is not a usual requirement for the occupation. A professional occupation is an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement. See 20 C.F.R. 656.3.

The ten recent BALCA decisions each involved the posting of Sunday ads in the Washington Examiner which was a free newspaper of general circulation in Maryland, D.C. and Virginia (it no longer publishes a Sunday newspaper). Eight of the decisions involved nonprofessional positions and two involved professional positions. In Matter of Fernando Lawn Services, LLC, 212-PER-01989 (Jun 6, 2019) the employer recruited for the position of Assistant Manager which required 2 years of experience as an assistant manager and a high school diploma. The CO denied the application on the sole ground that the Washington Examiner was “not a newspaper of general circulation most likely to bring responses from available U.S. workers.”  As authority, the CO cited 20 C.F.R. 656.17(e)(1)(i)(B)(l) which relates to professional occupations. The employer requested reconsideration or review and argued that the job was nonprofessional; the Washington Examiner was a newspaper of general circulation in the intended area of employment and was most likely to bring responses from able, willing, qualified, and available U.S. workers. However, the CO denied the motion for reconsideration on the same sole ground even though he cited the regulations relating to both professional and nonprofessional occupations thereby conflating the standards applicable to professional advertising with those applicable to nonprofessional positions.   The case was then forwarded to BALCA.

BALCA reexamined existing, inconsistent case law that involved the Washington Examiner. Capital Building Services, Inc., 2012-PER-01971 (Feb. 12, 2013) involved the position of Cleaning Supervisor. The job requirements were two years of experience and therefore the position was nonprofessional. The CO denied certification because the employer used the Washington Examiner as its newspaper of general circulation. The majority BALCA panel disagreed with the CO and ordered certification.  They distinguished the case from Intercontinental Enterprises, Inc., 2011-PER-02756 (July 30, 2012). In Intercontinental Enterprises, the CO denied certification, finding that the Washington Examiner was not the newspaper of general circulation most appropriate to the occupation and the workers likely to apply for the job opportunity because it involved the professional position of Senior Food Technologist. The BALCA panel noted that the regulatory history of the regulations recognized a distinction between professional and nonprofessional occupations. Specifically, when the regulations were being promulgated, the Employment and Training Administration explained in the proposed rule:

Under the current system [i.e., the pre-PERM regulations], the employer may advertise, when a newspaper of general circulation is designated as the appropriate advertising medium, in any newspaper of general circulation. However, our experience has shown that some employers routinely place newspaper advertisements in those newspapers with the lowest circulation and that these publications are often the least likely to be read by qualified U.S. workers. Therefore, in order for the employer’s job opening to receive appropriate exposure, the proposed regulation requires that the mandatory advertisements appear in the newspaper of general circulation most appropriate to the occupation and the workers most likely to apply for the job opportunity in the area of intended employment. For example, in a relatively large metropolitan area such as Philadelphia, Pennsylvania or Washington, DC, it would not be appropriate to place an advertisement for a computer professional in a suburban newspaper of general circulation since workers interested in professional jobs consult the metropolitan newspapers in the area of intended employment with the largest circulation rather than the suburban newspapers of general circulation. On the other hand, it would be appropriate to advertise in a suburban newspaper of general circulation for nonprofessional occupations, such as jewelers, houseworkers or drivers.

ETA, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 C.F.R. Part 656, 67 Fed. Reg. 30466, 30471 (May 6, 2002).

The Intercontinental Enterprises panel acknowledged that The Washington Examiner was not a mere suburban newspaper, but found that the employer failed to establish that it was the newspaper in the Washington, D.C. area most appropriate to the occupation in question and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. Essentially, The Washington Examiner was not appropriate to recruit for professional positions.

The panel in Capital Building Services found that the case was distinguishable from Intercontinental Enterprises because it presented an application involving a nonprofessional position and thus, the persons likely to apply are different types of job seekers. However, in his dissent, then Associate Chief Administrative Law Judge Johnson agreed with the majority that The Washington Examiner is a newspaper of general circulation and that the regulatory history indicates that a suburban newspaper of general circulation would be appropriate for certain nonprofessional occupations. But he disagreed with majority panel’s implication, by way of their grant of certification, that an employer may base its newspaper selection on less than the best newspaper choice for the occupation and the area of intended employment.

Further, in Millenniumsoft, 2012-PER-00636 (Nov. 23, 2015), regarding the position of Programmer Analyst, BALCA found that the use of the Washington Examiner was not appropriate for professional positions under either Intercontinental or Capital Building. The panel questioned the majority’s statement in Capital Building that the publication was a good choice for nonprofessional positions, noting that the statement did not seem consistent with the employer’s obligation under the regulation to use the newspaper “most likely” to attract domestic applicants. The “most likely” provision applies only to professional positions but the language “most appropriate to the occupation and the workers likely to apply for the job opportunity” appears in the criteria for both professional and nonprofessional positions. Several other BALCA panels go back and forth on finding the Washington Examiner to be either appropriate or inappropriate for recruitment for nonprofessional positions.

The panel in Fernando Lawn Services, after reviewing all the case law, agreed with the majority in Capital Building Services and held that the Washington Examiner is a newspaper of general circulation that may be a good choice for advertising certain types of jobs in the Washington, DC area; and the regulatory history indicates that a suburban newspaper of general circulation would be an appropriate choice for certain nonprofessional positions. BALCA held that an employer does not need to establish that its chosen newspaper is the best publication or has the greatest circulation where a nonprofessional occupation is involved. Rather, it must be established that it was “most appropriate to the occupation and the workers likely to apply for the job opportunity.” Since the employer asserted that the Washington Examiner was most appropriate and the CO offered nothing to refute this and did not identify the newspaper in which the Sunday ads should have been placed and explain why that paper would have been a better choice, the CO erred in denying the application.

Of the remaining nine recent cases, BALCA found the Washington Examiner to be the appropriate for nonprofessional positions such as Pipelayer, Server, Maintenance Repairer, Mason, Mechanic, and Cook and called out the CO for applying the standard applicable to professional positions to labor certification applications for these positions. See Eastern Pool Co. Inc., 2012-PER-01849; Fil Parong, 2012-PER-01167; Mount Vernon country Club, Inc., 2012-PER-02764; Daco Construction Corporation, 2012-PER-03333 and 2012-PER-03539; City Concrete Corp., 212-PER-02516 and Nova Europa Restaurant, 212-PER-03442, all issued on June 6, 2019.

In Georgetown Hill Early School, 2012-PER-03334, the offered position was that of a Teaching Assistant and required a Bachelor’s degree. The CO denied the application upon concluding that the Washington Examiner was not appropriate for recruitment for a professional position. In the end, BALCA did not accept the employer argument that the publication was targeted at young urban professionals and commuters and was widely read by white collar professionals and stated that this is not the standard but rather, it must be the newspaper “most likely to bring responses from able, willing, qualified and available U.S. workers” under the criteria for professional occupations appearing in 20 C.F.R. 656.17(e)(1)(i)(B)(1). See also, Software Catalysts, LLC, 2012-PER-01899 (Jun, 6, 2019).

BALCA cases can often serve as a warning of what is to come. Could the DOL soon start to focus more of its attention on the Sunday paper? While these recent cases focus on one paper in one geographic area, they are very important to highlight the importance of careful consideration when deciding on a Sunday newspaper of general circulation especially in relatively large metropolitan areas such as New York where there may be several newspapers that qualify as a “newspaper of general circulation.” It may not suffice to use the New York Times for a nonprofessional position such as a Nanny if the New York Times is not the paper “most appropriate to the occupation and the workers likely to apply for the job opportunity.” An argument that the New York Times has the highest circulation may not be successful if it cannot be proven that an out of work Nanny would likely search for a job in the New York Times as opposed to other newspapers of general circulation such as the New York Post or Daily News. In several of the ten cases discussed above, the CO actually checked the classified sections on the newspaper tear sheets provided by the employer and observed that the Washington Examiner’s classified sections included “no more than 30 total job listings over two pages, while they included nine pages of legal notices.” As practitioners, we ought to pay close attention to the types of advertisements that appear in different newspapers so that we are prepared to demonstrate that the employer has chosen the correct newspaper and to be able refute potential assertions made by a Certifying Officer in denying an application. There is no perfect method for making these determinations but in the end, the application ought to be certified as long as the employer has abided by the regulations and has demonstrated good faith recruitment. Hopefully.