Cyrus Mehta

What If the Job Has Changed Since the Labor Certification Application Was Approved Many Years Ago?

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Foreign national workers who have been waiting in the employment-based second and third preference green card backlogs for many years have fortuitously become eligible to file I-485 adjustment of status applications due to the advancement of filing dates in the October 2020 Visa Bulletin.

Many of the labor certifications were filed between 2009 and 2014. A labor certification filed on behalf of a software engineer years ago may have been required to use very different technologies from today. Even the SOC Code 15-1031 for Software Engineer is now defunct and cross walks to SOC Code 15-1132 for Software Developer, Applications. In addition, the wage being paid is probably higher than what was indicated on the labor certification and the title may have changed to Vice President of Software Engineering or Director of Software Projects. While it is good news for the foreign national and the US employer when a skilled foreign national worker advances up the ladder, the employment-based immigration system requires that the duties still comply with what was indicated in the fossilized labor certification many years ago.

It is truly unfortunate that there has never been an expansion in the visa numbers in the employment based green card categories since the Immigration Act of 1990. Due to the per country limits within each employment preference, beneficiaries of approved labor certifications and I-140 petitions born in India are destined to wait in backlogs that can stretch over decades. The wait for the green card stalls careers and precludes job mobility.  It is thus fortunate that the India EB-3 Dates of Filing in the October 2020 Visa Bulletin advanced to January 1, 2015 allowing tens of thousands of beneficiaries of approved I-140 petitions to become eligible to file I-485 adjustment of status applications.

Many are now finding that their job descriptions have changed since the approval of the labor certification and they have also been promoted a few times over. While section 204(j) of the Immigration and Nationality Act (INA) allows the worker to exercise job portability to a same or similar occupation if the I-485 application has been pending for 180 days or more, such job mobility is not available at the time of filing the I-485. Whether the I-485 is being filed with either a concurrent I-140 petition, which may be a downgrade EB-3 petition, or by itself based on an old approved I-140 petition that is now current, it must be supported by a job offer from the employer that is substantially similar to the job described in the labor certification.

If the job has drastically changed, then the employer may need to file a new labor certification describing the new position, and if approved, a new I-140 petition that recaptures the old priority date. Alternatively, the employer may still offer the position in accordance with the terms of the approved labor certification. But the old job may have become obsolete due to a rapid advance in technology and it would also be unfair to expect the foreign worker to regress to the old job after a natural career progression. Yesterday’s programmer may have today become a machine learning engineer. Or the automotive engineer involved with the internal combustion engine is now a high voltage battery test engineer.   There is little USCIS guidance on dealing with career progression after a labor certification has been approved although it has been established USCIS  policy  that any material changes in the terms and conditions of employment requires an amended petition.  Unfortunately, a future visa bulletin may no longer have current filing dates by the time a new labor certification is granted, and there is a risk that in the current economic downturn, the new labor certification may not even get approved.

On the other hand, if the job role remains the same and requires the same skills set, but only the technologies have changed, it is still possible to rely on the previously approved labor certification. In the case of the software engineer, if the duties still include involvement in all phases of the life cycle development process, but the technology has changed and the position has more responsibility than before, it may be possible to describe the new position as being similar to the old position, but that the beneficiary is using updated technologies of those listed in the labor certification. An increase in the salary would not be of concern if it is generally for the same job described in the labor certification. Even a change in the job title should not be considered material so long as the position remains in the same SOC occupational code.

A recent AILA practice advisory suggests that when a promotion results in a substantial change “e.g., when a Software Engineer is promoted to Director of Engineering or a Biostatistician becomes a Manager, Machine Learning,” then a new labor certification and consequently a new I-140 petition is required. An incremental promotion, on the other hand, which does not alter the basic position duties or qualifications in any significant way, may not require a new labor certification. The AILA practice advisory provides the example of a “Biostatistician I who becomes a Biostatistician III with a salary increase but no substantial changes to duties or responsibilities. In this scenario, an employer may file a new I-140 based on the original Labor Certification to either upgrade or downgrade the beneficiary’s classification depending on which visa category is current.”

It is indeed a sad state of affairs that the tyrannical priority dates in the employment green card system have not just held up lives and careers of skilled immigrants for so many years, but the long waits also have the potential to render the prized labor certification approved years ago obsolete. It is hoped that the USCIS adopts a more flexible approach and makes allowances for job promotions and changes, even if the change is substantial, and even if the change has been from analyst to manager,  so long as the foreign national worker’s job description uses the same baseline skills and education, and is within the same or related SOC occupational code. Those who have waited patiently for so many years and played by the rules ought to be rewarded with a green card based on an old labor certification even if the job has naturally and incrementally progressed over time.

 

 

 

 

Cyrus Mehta

Killing the H-1B Visa Also Kills the US Economy

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By Cyrus D. Mehta & Kaitlyn Box

Last week the Department of Labor (DOL) and the Department of Homeland Security (DHS) each issued new rules aimed at further attacking the H-1B visa program. The DOL rule, which was issued without affording the public an opportunity for notice and comment, significantly raises the minimum required wage that employers must pay to H-1B employees. The new rule could increase prevailing wages for some positions by as much as 40% or more.  The rule goes into effect immediately. The rule’s stated purpose is to ensure that U.S. workers are not forced out of their jobs by cheap foreign labor, but it advances no support for the outdated notion that H-1B workers are systematically underpaid. It was promulgated without any notice and comment as required under the Administrative Procedures Act. The DOL’s spurious justification for this unfair surprise was to prevent employers from rushing to filing Labor Condition Applications under the old wage rates that would have been valid for three years.

The rule, which was likely aimed at making H-1B employees too costly for U.S. employers to hire, poses several legal quandaries.  As pointed out by Stuart Anderson in a Forbes article, U.S. employers, for example, could be forced to pay H-1B employees significantly higher wages than their American counterparts, causing them to run afoul of equal pay laws that require employees who are in a protected class, including nationality, to be paid wages that are equivalent to those earned by employees who are not members of the protected class. Take, for example, New York’s New York State’s Pay Equity Law, which prohibits employers from paying an employee who is a member of one of the protected classes less than a worker without protected status for equal or substantially similar work. N.Y. Labor Law art. 6, § 194 (1) (2019). “Protected Class” is defined to include gender, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim.

By promulgating this latest rule, the DOL could also be forcing employers to violate its own rules regarding the payment of wages to H-1B workers. Under 20 CFR § 656.731(a), employers must pay H-1B workers the higher of the prevailing or the actual wage. The actual wage is the wage paid to all other individuals with similar experience and qualifications for the specific employment in question. An employer could be forced to pay new hires significantly higher wages than those paid to existing H-1B workers holding the same position, resulting in the existing employees being paid less than the actual wage in violation of 20 CFR § 656.731(a). Employers could raise wages across the board to avoid this situation, but increasing wages substantially and with little warning is unlikely to be feasible for most, and could ultimately result in layoffs and damage to the U.S. economy.

The DHS rule, which goes into effect on December 7, 2020, makes it more difficult yet for U.S. employers to win H-1B approvals by imposing language requiring a direct relationship between the specialized degree and the occupation. Under the new rule, a position does not qualify as a “specialty occupation” unless:

“(1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into the particular occupation in which the beneficiary will be employed;

(2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into parallel positions at similar organizations in the employer’s United States industry;

(3) The employer has an established practice of requiring a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, for the position. The petitioner must also establish that the proffered position requires such a directly related specialty degree, or its equivalent, to perform its duties; or

(4) The specific duties of the proffered position are so specialized, complex, or unique that they can only be performed by an individual with a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.”

(emphasis added)

Among the DHS rule’s most significant changes is the reduction of the H-1B visa validity period from the current three years to just one year when the H-1B worker will work at a third-party worksite. Additionally, the rule inserts the requirement that only positions requiring education or experience in a “directly related specific specialty” will qualify as specialty occupations, greatly limiting the number of individuals who can successfully qualify for an H-1B visa. Employees in IT-related fields, who often hold general degrees in engineering or computer science, are likely to have particular difficulty meeting this new requirement.

The rule also imposes burdens on employers who send H-1B workers to third-party worksites, apparently reviving some of the onerous requirements struck down in IT Serve Alliance v. Cissna. In assessing whether an employer-employee relationship exists, the new rule encourages closer scrutiny as to whether the requisite level of employee supervision exists when the employee is stationed at a third-party worksite. Additionally, employers who employ H-1B workers at third-party worksites must submit additional evidence such as “contracts, work orders, or other similar corroborating evidence showing that the beneficiary will perform services in a specialty occupation at the third-party worksite(s), and that the petitioner will have an employer-employee relationship with the beneficiary”.

These new rules pose the potential for serious harm to both H-1B workers and the U.S. companies who employ them. Employers must file an extension for an H-1B worker whose status is expiring, but if they are not able to pay the employee the new, artificially inflated wages imposed by the DOL rule, the request for an extension may not be filed. Limitations in OES data have resulted in wages for some positions being entirely unavailable. For example, no wage data has been listed for a Software Developer, Systems in San Francisco since the new rule was promulgated on October 8, 2020. The default wage for Software Developer, Systems is $208,000. Similarly, little wage data is listed for physicians so they too must be paid the $208,000 default wage. Employers are forced to either pay the default wage, an exorbitant salary for many positions, or wait until wage data is available, potentially risking an untimely filing of the employee’s H-1B extension. If an extension is not filed, the H-1B employee would then be forced to rapidly depart the United States in the midst of a pandemic. Employers, particularly those in IT-related fields who employ numerous H-1B workers, who are unable to pay the new, substantially higher wages could be forced to lay off workers, or move their operations overseas. Foreign students graduating from US schools will not be hired by US employers if the entry level wage is ridiculously high. This will result in foreign students paying tuition fees to universities in other countries if their career prospects in the US will be diminished by these rules.  Nonprofits and startups will also find it impossible to pay these artificially inflated wages, which have no bearing whatsoever on the prevailing market wage.

Although litigation may soon challenge the new rules, putting U.S. employers in this difficult position for the time being does not bode well for the American economy’s chances of recovering from the effects of COVID-19. Forcing U.S. companies to reduce their workforce or move overseas to keep costs down also threatens the employment prospects of American workers who look to these same companies for jobs – ironic, as this is the very group whose interests the new rules are aimed at protecting.  Aspiring immigrants desire to come to America to succeed, and this in turn also benefits the US economy as they innovate and start or lead great companies. This is America’s secret sauce.  Nobody is denying that some aspects of the H-1B visa program should not be reformed, such as providing more job mobility to H-1B workers and providing them with a faster path to the green card, but these two new rules poison the secret sauce that keeps America so successful.

 

Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Frequently Asked Questions on Filing a “Downgrade” EB-3 petition under the October 2020 Visa Bulletin

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The October 2020 Visa Bulletin significantly advanced the  Filing Date of the employment-based third preference (EB-3) for India to January 1, 2015. This would make many beneficiaries with approved I-140 petitions caught in the EB-3 backlog eligible to file I-485 adjustment of status applications. Even those with approved I-140 petitions under the employment-based second preference (EB-2) could potentially file a downgrade I-140 petition under EB-3 and concurrently file I-485 applications.   Following the posting of our blog last week, Downgrading from EB-2 to EB-3 Under the October 2020 Visa Bulletin, we have received many questions, which I address below:

 

1. I have an approved I-140 petition under EB-2 with a priority date of May 15, 2013. Am I able to file a downgrade I-140 under EB-3 along with a concurrent I-485 application for myself, spouse and minor child?

Since the Filing Date for EB-2 India is May 15, 2011 in the October 2020 Visa Bulletin, and the priority date on your I-140 petition is May 15, 2013, you cannot file an I-485 with your I-140 petition under EB-2. However, your employ will be able to file a new downgrade I-140 petition under EB-3 (as a petition approved under EB-2 should meet the lower threshold requirement of EB-3 and the EB-3 date is January 1, 2015), based upon which you will be able to file a concurrent I-485, and your spouse and child will also be able to file I-485  applications as derivatives with your I-485  application.

 

2. How will filing an I-485 application benefit me?

Filing an I-485 application under a Filing Date will not result in permanent residency or the green card. The Final Action Date in the Visa Bulletin needs to become current for you to be eligible to receive the green card. The Filing Date is a prediction of where the Final Action Date will be at the end of the fiscal year. As this is just an estimate, there is a possibility that if the advance in dates results in many I-485 filings, the Filing Date can also retrogress rather than move forward. While your I-485 is pending, you and your derivative family members will be eligible to apply for an employment authorization document and advance parole or travel permission. If the I-485 application is pending for 180 days, you will also be able to exercise job portability under INA 204(j) in a same or similar occupation either with the same or another employer.

 

3. Must I be in a nonimmigrant status in order to be eligible to file the I-485?    What if I am in violation of my H-1B status since my last entry because my employer terminated me during the Covid-19 economic downturn 120 days ago, but now wishes to hire me back?

Yes. You need to be in a lawful nonimmigrant status as a condition to filing an I-485 application, but with an exception. If your employer terminated you 120 days back, you have been out of status for 60 days (as you were entitled to a 60 day grace period upon termination). Fortunately, under INA 245(k), you may still be eligible to file an I-485 as 245(k) renders one ineligible to apply for adjustment of status who has failed to maintain status for more than 180 days from your last admission. Since you failed to maintain status for 60 days from your last admission, you will still be able to file an I-485 application if your employer files the downgrade I-140. 245(k) will also apply to your spouse and child if they too fell out of status for less than 180 days.

Upon filing the I-485, you can also apply for an Employment Authorization Document. Upon receiving the EAD, your employer will be able to employ you.

 

4. Assuming that I was in H-1B status at the time of filing the I-485 application, do I still need to remain in H-1B status after I file the I-485 application?

While it is always prudent to remain in H-1B status (as one who is maintaining status cannot be placed in removal proceedings), it is not required as being an I-485 applicant authorizes you to remain in the US. However, an I-485 applicant without the underlying H-1B status can theoretically be placed in removal proceedings, although as a practical matter this rarely happens.  For instance, if you wish to port to a new employer, and the new employer is not willing to file an H-1B extension, you can rely on the employment authorization document that was issued to you as a pending I-485 applicant. Likewise, you may also rely on the advance parole for purposes of travel, and this would even obviate the need for you to seek a new H-1B visa from the US Consulate during the Covid-19 period, which may only issue emergency visa appointments.

 

5. What if the Final Action Date on my prior EB-2 I-140 becomes current before the Final Action Date on my EB-3 becomes current?

The USCIS does have the ability to use the most appropriate I-140 – whether under EB-2 or EB-3 – when the visa becomes available for the appropriate preference category. If the USCIS does not do this on its own volition, you can write to the USCIS to request that the I-485 application be transferred from one basis to another, see https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8 .  Alternatively, you can also try calling the USCIS Contact Center at i-800-375-5283 and request a transfer of the I-485 from one basis to another. There is no need to file a new I-485 based on the EB-2 I-140 if the EB-2 Final Action Date becomes current.

 

6. My son is 18, will his age be protected under the Child Status Protection Act if he turns 21 and our I-485 applications are still pending?

Under current USCIS policy, the Filing Date does not freeze the age of the child based on the Filing Date (see Recipe for Confusion: USCIS Says Only the Final Action Date in the Visa Bulletin Protects a Child’s Age under the Child Status Protection Act). So, if the Final Action Date does not become current before your child turns 21, your child will not be able to adjust to permanent residence with you.  Note, however, that under the CSPA, you can subtract the number of days the I-140 petition remained pending from the age of your child if he is over 21 at the time the Final Action Date becomes current.

The lack of CSPA protection based on a Filing Date is erroneous policy. My colleague Brent Renison has filed a lawsuit to force USCIS to accept the Filing Date for CSPA protection, and you can visit his website, http://www.entrylaw.com/backlogcspalawsuit, to join the lawsuit in case your child will be impacted by this policy.

 

7. Should I request premium processing on the downgrade I-140 petition?

The USCIS has specifically indicated that premium processing for an I-140 will be precluded if the original labor certification was filed with the previous I-140 under EB-2, although some have requested premium and USCIS accepted request. If a child is involved who may need CSPA protection, then requesting premium on the I-140 is not advisable as you will be able to subtract more time (as the I-140 petition will take longer to get approved) from the child’s age in case the child turns 21.

 

8. I have an approved EB-3 I-140 filed by a prior employer with a priority date of January 1, 2014. My new employer has just filed my labor certification and is hoping to capture the priority date of the prior I-140 after the labor certification gets approved. Can I use the prior I-140 to file an I-485 application?

The prior employer would have to offer the job to you on an I-485 Supplement J. It has to be a bona fide offer of employment based on the terms of the underlying labor certification of that I-140. If is not a bona fide offer of employment, it would certainly not be advisable to go ahead and file the I-485 application based on the previously approved I-140. Rather, it would be prudent to wait for the labor certification to get approved and recapture the old priority date when the current employer is able to file the I-140 petition. However, there is no way of knowing whether the Filing Date will continue to be current by the time the new labor certification is approved. Still, this would be the only approach if the prior employer’s offer of employment is not bonafide.

 

9. Can the EB-3 I-140 downgrade be denied?

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. However, one cannot foreclose the possibility of a USCIS examiner inventing erroneous reasons to deny an EB-3 I-140 based on the same labor certification that supported an I-140 under EB-2.

Still, an I-140 downgrade can be denied on legitimate legal grounds such as if the employer cannot demonstrate ability to pay the proffered wage to the beneficiary if the tax returns show losses, or if the USCIS revisits an issue that it did not pay attention to while adjudicating the prior I-140 petition such as whether the foreign degree was a single source degree.

 

10. If the EB-3 I-140 gets denied, will my previously I-140 EB-2 be safe?

If the grounds for denying the EB-3 were based on issues that were relevant to the approval of the EB-2, such as whether the beneficiary possesses a single source degree or whether the employer had the ability to pay the proffered wage at the time the labor certification was filed, then there is a risk that the I-140 under EB-2 can also get revoked.