Tag Archive for: H-1B

Cyrus Mehta

Federal Court Strikes Down Trump’s $100,000 H‑1B Fee: INA § 212(f) Is Not a Taxing Power

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By Cyrus Mehta, Damira Zhanatova and Kaitlyn Box

On Monday, June 8, 2026, a Massachusetts federal judge delivered a major decision for employers who rely on the H‑1B program. In State of California et al. v. Markwayne Mullin et al., U.S. District Judge Leo T. Sorokin ruled that President Donald Trump’s $100,000 payment requirement on new H‑1B visas is a tax that Congress never authorized the President to impose. He declared the fee unlawful and vacated it in its entirety.

The lawsuit, brought by 20 Democratic state attorneys general, challenged a September 2025 Proclamation that announced an additional $100,000 “supplemental payment” for each new H‑1B petition, dramatically increasing the cost of sponsoring highly skilled foreign workers. Judge Sorokin rejected the government’s central argument that the President’s broad authority under INA § 212(f) to “impose on the entry of aliens any restrictions he may deem to be appropriate” provided legal support for the payment. The court concluded that Congress did not confer taxing power on the President through the Immigration and Nationality Act. As Judge Sorokin wrote, “The court finds that the policy imposes a tax on H‑1B petitions without the requisite delegation by Congress.”

This district court decision is a major victory for H‑1B employers and a sharp reminder that presidential power under INA § 212(f) has real limits although it has been endorsed by the Supreme Court in Trump v. Hawaii to restrict the entry of nationals of certain countries. The court rejected the Trump Administration’s attempt to use § 212(f) to impose a flat $100,000 “supplemental payment” on every new H‑1B petition. In the court’s view, the payment is a tax, the INA does not clearly delegate taxing authority to the President, the implementing Policy violates the Administrative Procedure Act (APA), and the Policy is therefore vacated nationwide.

The court’s core holding is that § 212(f) is not a blank check to tax H‑1B petitions. The government leaned heavily on the phrase “any restrictions he may deem to be appropriate,” arguing that this language is as broad as the tariff authority the Supreme Court upheld in Algonquin under Section 232 of the Trade Expansion Act. The court, however, relies on the Supreme Court’s more recent Learning Resources decision, which sharply narrows how far Algonquin can be pushed.

In Learning Resources, the Supreme Court contrasted Section 232 with the International Emergency Economic Powers Act (IEEPA). Section 232(b) authorizes the President to “adjust imports” and to “take such action . . . as he deems necessary” to do so, in a statutory setting that explicitly references “duties” and “import restrictions.” That context made it natural to read Section 232 as including tariff authority. IEEPA, by contrast, only allows the President to “regulate” imports, omits the “such action as he deems necessary” language, and contains no mention of duties or tariffs. The Supreme Court therefore refused to treat IEEPA’s general regulatory grant as a delegation of tariff or taxing power.

Applying that same framework to the INA, Judge Sorokin notes that §§ 212(f) and 215(a) let the President suspend or restrict entry and prescribe “reasonable rules, regulations, and orders” and “limitations and exceptions” governing entry, but they never mention duties, taxes, or any other revenue‑raising fees. Even though § 212(f) appears broad in isolation, it lacks the specific, duty‑focused context that justified Algonquin’s limited reading of Section 232. Learning Resources underscores that the Supreme Court has long been reluctant to read extraordinary delegations of Congress’s core powers into ambiguous text, especially where the “power of the purse” is involved. Taxing authority, the Court has said, is “core to Congress,” and Judge Sorokin finds nothing in the INA that clearly hands that power to the President.

In his opinion, he emphasizes that the Supreme Court has “long expressed reluctance to read into ambiguous statutory text extraordinary delegations of Congress’s powers,” and that “separation of powers principles and a practical understanding of legislative intent suggest Congress would not have delegated highly consequential power through ambiguous language.” Those principles, he explains, “apply with particular force where, as here, the purported delegation involves the core congressional power of the purse.” The opinion also notes that the government itself conceded that the taxing power is “core to Congress.” Against that backdrop, Judge Sorokin concludes that these considerations “preclude reading INA §§ 212(f) and 215(a) as delegating Congress’s exclusive power to tax.”

That reasoning closely tracks what we identified in our prior blog as a form of the major questions doctrine at work in the immigration context. Without using the label “major questions,” Judge Sorokin applies the same basic logic. The court treats the imposition of a massive, program‑wide $100,000 charge as a “highly consequential power” that Congress would not have handed to the Executive through vague references to “restrictions” on entry. In his view, a de facto tax of that magnitude – one that would fundamentally reshape the cost structure of a central employment‑based visa category – is a decision of great economic and political significance. In that situation, generalized language about “restrictions” on entry is not enough. When the Executive claims authority to take such a consequential step, courts will look for, and insist on, a clear statement from Congress. The major questions doctrine, discussed at length in Learning Resources, and addressed in our prior blog, has implicitly been acknowledged in this recent decision.  The Supreme Court’s tariffs decision in Learning Resources influenced the court in California v Mullane in finding Trump’s $100,000 fee unlawful, and although this court did not state so explicitly, under the major questions doctrine where executive actions have major economic or political significance there has to be explicit Congressional authorization, and here there was none notwithstanding the broad authority given to the President under INA 212(f) in determining the entry of noncitizens into the US.

The government tried to recast the $100,000 payment as an incident of the President’s immigration or commerce powers, invoking nineteenth‑century state head‑tax cases (Smith v. Turner and Henderson v. Mayor of New York) and Merrion v. Jicarilla Apache Tribe. The court is not persuaded. Smith and Henderson were about state taxes on arriving foreign passengers and the boundary between state and federal power over foreign commerce. They did not suggest that a tax on entry is purely a commerce regulation or that delegating commerce powers to the Executive silently includes taxing authority. Merrion, in turn, addressed the inherent sovereign power of a tribe to tax on its own reservation. Tribal taxing power does not derive from the U.S. Constitution, whereas the President has no inherent authority to raise revenue at all. That power lies exclusively with Congress under Article I, Section 8. In Skinner, the Supreme Court held that Congress must clearly indicate any intent to delegate taxing power to the Executive. The court sees no such clear indication in the INA, so these lines of cases do not rescue the Proclamation.

The government also argued that the $100,000 payment is simply a “restriction on entry” authorized by § 212(f). The court confronts that argument directly. Textually, § 212(f) speaks of “restrictions.” In ordinary usage, a tax is not a “restriction” on entry. It is a fiscal measure. Congress did not say “any tax, penalty, or condition” but instead chose narrower language. Structurally, the government’s reading would leave “no perceivable limits” on presidential power. On that view, the President could demand a percentage of a company’s equity as a condition for obtaining an H‑1B, require a U.S. citizen sponsoring a spouse to surrender half her assets, or even try to impose incarceration as a “condition” on sponsoring a relative. Government counsel conceded at argument that incarceration would collide with other constitutional protections, but that only underscores how far the asserted reading strays from statutory text and congressional intent. The court’s hypotheticals make this part of the opinion particularly valuable for future litigation, because they show in concrete terms why § 212(f) cannot be converted into an all‑purpose tool for extracting economic value from U.S. sponsors or re‑engineering large parts of the immigration system.

Once the court concludes that the $100,000 payment is an unauthorized tax, its APA analysis follows logically. The government tried to insulate the Policy from APA review by describing it as a mere “extension of the President’s action.” The court adopts what is becoming the prevailing rule: agency actions taken to implement a presidential directive are subject to APA review unless the underlying authority has been committed by Congress to the sole discretion of the President. The authority to tax H‑1B petitions was never delegated to the President at all, much less committed to his exclusive discretion, so DHS and State cannot shelter behind the Proclamation.

The court finds that the memoranda, FAQs, updated webpages, revised H-1B fee schedule, and online payment system collectively amount to “final agency action” under Bennett v. Spear. They marked the consummation of the agencies’ decision making and immediately changed the legal obligations of H-1B petitioners by making payment of $100,000 a prerequisite for approval. 

On the APA’s procedural requirements, the court holds that the Policy is a legislative rule adopted without notice‑and‑comment. Because the President lacked statutory authority to tax H‑1Bs, his Proclamation did not itself have the force of law. It was the agency materials that created rights, assigned duties, and imposed obligations. That makes them legislative rules subject to § 553. The court rejects the argument that agencies were compelled to follow the Proclamation: agencies are not obligated to comply with unconstitutional or ultra vires directives, and they cannot use such directives as a shortcut around APA rulemaking. Nor can the foreign‑affairs or good‑cause exceptions save the Policy. The government identified no “definitely undesirable international consequences” that would have flowed from using notice‑and‑comment, and it pointed to no emergency threatening life, property, or public safety that would meet the high bar for good cause. The agencies did not contemporaneously invoke good cause in their documents. The court also refuses to treat the violation as harmless, because notice‑and‑comment might have affected the substance of the policy or forced serious consideration of its impact on state employers and cap‑exempt institutions.

On the substantive side of the APA, the court translates its separation‑of‑powers discussion into an “excess of statutory authority” holding. Agencies literally have no power to act unless Congress has conferred it. No INA provision authorizes DHS or State to impose a $100,000 tax on H‑1B petitions. Section 1356(m) is limited to cost‑recovery adjudication fees, and by the government’s own admission, the Proclamation does not impose a fee to cover costs, does not displace existing fees, and is not collected or used like other adjudication fees. Because §§ 212(f) and 215(a) also do not confer taxing power, there is simply no statutory hook for the Policy. As a result, it is “in excess of statutory jurisdiction, authority, or limitations” under 5 U.S.C. § 706(2)(C).

The court further finds that the Policy is arbitrary and capricious. The agencies offered only thin, high‑level rhetoric about addressing “systemic abuse” of H‑1B visas and protecting American workers, with no reasoned explanation of why a flat $100,000 tax is a rational or tailored response. They failed to identify or assess reliance interests, despite the obvious reality that state schools, hospitals, and universities had built long‑term staffing models around the existing H‑1B cost structure, particularly for cap‑exempt roles. The record shows no consideration of alternatives, such as lower amounts, exemptions or discounts for public or cap‑exempt employers, or less disruptive tools targeted at specific abuses. There is also a stark sector mismatch: the Proclamation’s rationale is aimed at STEM and IT sectors and private tech firms, but the Policy applies equally to human‑services sectors like education and healthcare without any sector‑specific analysis or justification. Finally, the court rejects the argument that agencies cannot be arbitrary when they are merely following a presidential directive. The directive itself was not lawful, and even under a lawful directive, agencies must implement it “to the extent permitted by law,” which includes satisfying APA reasoned‑decisionmaking requirements.

On remedy, the court emphasizes that the APA’s instruction to “set aside” unlawful agency action has long been understood to authorize vacatur. It distinguishes vacatur from injunctions: an injunction is directed at particular parties, while vacatur operates on the rule or policy itself, nullifying the government’s authority to act under it. The court sees no need to limit relief to the plaintiffs and rejects res judicata arguments based on overlapping membership with parties in other cases, noting that mere association membership does not create the kind of privity needed for claim preclusion. It issues a declaratory judgment that the Policy is unlawful and vacates it in its entirety, concluding that a separate permanent injunction is unnecessary so long as vacatur is available.

For immigration practitioners and H‑1B employers, the immediate effect is straightforward. Agencies may not condition H‑1B approval on payment of the vacated $100,000 charge. H‑1B costs are again limited to the statutory charges Congress has enacted and to cost‑recovery adjudication fees lawfully set by DHS under § 1356(m). The decision also sends a broader signal about executive power in immigration. It marks a strong limit on § 212(f), making clear that “restrictions on entry” cannot be used to impose taxes, confiscate equity, or extract other unrelated economic concessions from U.S. sponsors. It reinforces a clear‑statement rule for taxation: if the Executive wants to tie immigration benefits to revenue‑raising exactions, it must point to explicit statutory authority and comply with APA procedures and reasoned‑decision making standards.

The ruling also provides a template for litigation strategy. It shows how to challenge executive actions that blur the line between regulating entry and raising revenue, particularly when they are implemented via FAQs, web postings, and internal memoranda rather than formal rulemaking. The court’s hypotheticals and its reliance on Learning Resources offer useful language to resist over‑broad readings of § 212(f) that would erode the INA’s structure.

Practitioners should adjust current H‑1B counseling and filings to reflect that no $100,000 “supplemental payment” may be imposed under this vacated Policy. It is prudent to monitor closely for any new attempts, whether by rulemaking or new proclamation or through the government appealing the decision, to alter the H‑1B fee structure, and to scrutinize those efforts for a clear statutory basis and APA compliance. For clients who hesitated to file H‑1Bs because of the proposed charge, counsel can now revisit those decisions and, where appropriate, move forward under the restored statutory framework, while keeping an eye on potential appeals or replacement policies that might test these same legal boundaries in new ways.

 

Cyrus D. Mehta & Damira Zhanatova

Navigating the Downgrade of the Indian LL.B in Green Card Sponsorships for Lawyers

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By Cyrus D Mehta and Damira Zhanatova*

Over the last few years, many U.S. employers sponsoring Indian-trained lawyers for permanent residence have begun seeing a new kind of I-140 Request for Evidence (RFE). The problem is not usually the lawyer’s experience, bar admission, or the substantive need for foreign law expertise. Instead, the RFE often focuses almost entirely on how AACRAO EDGE now classifies the Indian Bachelor of Laws (LLB) degree.

Sometime around 2022, EDGE updated its guidance to treat the Indian LLB as comparable in level to a U.S. bachelor’s degree rather than a U.S. first professional law degree (JD). That shift has created serious complications in employment-based second preference (EB-2) cases for foreign lawyers, particularly where earlier credential evaluations had treated the LLB as JD-equivalent.  This blog explains what is happening, why USCIS is issuing RFEs, and how careful framing of the job requirements and the beneficiary’s credentials can still lead to I-140 approval.

The EDGE update matters because USCIS officers often consult EDGE to evaluate foreign educational credentials. In older cases, credential evaluations concluded that a three-year Indian LLB, earned after a prior bachelor’s degree, was equivalent to a U.S. JD. Now, the updated EDGE entry states that the Indian Bachelor of Laws “represents attainment of a level of education comparable to a bachelor’s degree in the United States,” while also noting, in the author comments, that this credential “functions as a first professional degree in law in India”. The LLB degree can be attained after three years or four years of college followed by three years of study in a law college or the LLB is also attained after five years of study in a law college after twelve years of high school. Both the three year and five-year LLB degrees have been downgraded by EDGE as being comparable to a bachelor’s degree in the US.  RFEs have begun quoting only the “bachelor’s-degree-equivalent” language to argue that a beneficiary does not have the equivalent of a U.S. JD or “equivalent professional degree” that the officer believes the position requires, while ignoring the “first professional degree” function in the Indian legal system.

That EDGE language places the Indian LLB in a very different position than certain other Indian professional degrees. For example, EDGE’s entry for the MBBS states: “The Bachelor of Medicine & Bachelor of Surgery represents attainment of a level of education comparable to a first professional degree in medicine in the United States.” In other words, for medicine EDGE is willing to say directly that the foreign degree is comparable to a U.S. first professional degree. For law, it stops short, saying the LLB “represents attainment of a level of education comparable to a bachelor’s degree in the United States” and only that it “functions as a first professional degree in law in India.”

The situation for LLBs from India has remained unsettled as a result. One theoretical approach is to try to extend the “First Professional Degree” language that EDGE applies to Indian credentials in fields like medicine and dentistry and argue that it should likewise cover law. However, given the current LLB wording, that is a weak argument today and unlikely to be persuasive on its own. The qualifiers “functions as” and “in India” signal that EDGE is deliberately not saying that the LLB is comparable to a first professional law degree in the United States.

In the EB-2 context, the core legal standard is set out in the regulations at 8 C.F.R. § 204.5(k). Under that provision, an I-140 can be approved for a “member of the professions holding an advanced degree” if the beneficiary has either an advanced degree (or a foreign equivalent) or a U.S. bachelor’s degree (or a foreign equivalent) followed by at least five years of progressive post-baccalaureate experience in the specialty. The regulation explicitly recognizes that a foreign degree equivalent to a U.S. bachelor’s degree plus five years of progressive experience can satisfy the “advanced degree” requirement, even if the foreign degree itself is not equivalent to a U.S. master’s or JD. 

Agency guidance interpreting 8 C.F.R. § 204.5(k) reiterates that where the foreign education is found to be only equivalent to a U.S. bachelor’s degree, the petitioner may still satisfy the advanced-degree standard by documenting at least five years of progressive post-baccalaureate experience in the specialty occupation. That guidance further explains that “progressive” experience must reflect increasing levels of responsibility, complexity, and judgment over time, rather than simply time served in an unchanging role. 

This is where the EDGE shift collides with long-standing EB-2 standards. When credential evaluators previously described the LLB as JD-equivalent, many EB-2 filings for Indian-trained lawyers were framed as if the beneficiary already held a foreign professional law degree at the U.S. graduate level. With EDGE now labeling the LLB as bachelor’s-level, adjudicators are much more likely to apply the bachelor’s-plus-five-years track laid out in 8 C.F.R. § 204.5(k)(3)(i)(B). That approach is consistent with the regulation’s text, but it requires petitioners to pay close attention to how they document both education and experience.

At the same time, resources like AACRAO EDGE are not binding sources of law. Officers are ought to treat such tools as aids, but to base final determinations on the totality of the evidence and the regulatory standards in 8 C.F.R. § 204.5(k). Where a foreign degree is only at the bachelor’s level, adjudicators must examine whether the record establishes at least five years of progressive post-baccalaureate experience in the specialty, rather than allowing EDGE alone to determine the outcome.

In practice, effective responses to the Indian LLB-related RFEs have emphasized several key points. One key point is the distinction between EDGE’s “level” description and the LLB’s actual professional function. Even if EDGE now describes the LLB as comparable to a U.S. bachelor’s degree, the same entry acknowledges that it functions as a first professional degree in law in India. Petitioners substantiate this by submitting evidence that the LLB is the credential required for enrollment as an advocate with an Indian bar council, and that without it, an individual cannot practice law in that jurisdiction. Enrollment certificates and bar‑council documentation demonstrate that the LLB is, in fact, the professional law qualification in the foreign system, not a generic academic credential.

Another key point is the importance of the certified job requirements. Where the labor certification permits an LLB or an “equivalent professional degree” among the acceptable qualifications, USCIS’s role at the I‑140 stage is to determine whether the beneficiary possesses that foreign professional law degree and any other DOL‑certified minimums, not to retroactively raise the bar to a U.S. JD alone. The friction introduced by the revised EDGE language should be addressed in the EB‑2 analysis under 8 C.F.R. § 204.5(k), rather than by rewriting the Department of Labor’s minimum qualifications after the fact.

Petitioners have also increasingly grounded their arguments in the bachelor’s-plus-five-years prong of 8 C.F.R. § 204.5(k)(3)(i)(B). If USCIS treats the Indian LLB as equivalent to a U.S. bachelor’s degree, the path forward is to demonstrate that the beneficiary has at least five years of progressive post-baccalaureate experience in the relevant legal specialty. Agency guidance interpreting that provision indicates that experience must show advancement in responsibility and complexity, such as moving from junior work to leading complex matters, supervising other professionals, or managing key client relationships, rather than merely accumulating time. Detailed letters of experience from prior employers, with concrete descriptions of duties and progression, are therefore essential.

Many practitioners continue to use credential evaluations that synthesize EDGE and other authorities to explain why an LLB pursued after a prior bachelor’s degree should be understood as a first professional degree in law in terms of structure and purpose. Evaluations point out that, structurally, the combination of a prior bachelor’s degree and a three-year LLB in India is analogous to the U.S. pattern of an undergraduate degree followed by a JD, and that in both systems, the professional law degree is the prerequisite for bar admission. Even if USCIS adheres to EDGE’s bachelor’s-level characterization for level-equivalency purposes, these evaluations help show that the overall educational and professional pathway satisfies the EB-2 advanced-degree standard when combined with the required progressive experience under 8 C.F.R. § 204.5(k). 

The bottom line is that the EDGE “downgrade” of the Indian LLB has changed how many I-140s for Indian-trained lawyers are argued and reviewed, but it has not closed the door on EB-2 classification. By acknowledging the updated EDGE language, highlighting the LLB’s role as a first professional law degree in India and as the gateway to bar admission, aligning job requirements with that foreign professional credential, and deliberately building a record of at least five years of progressive post-baccalaureate experience within the framework of 8 C.F.R. § 204.5(k), employers can continue to obtain I-140 approvals for Indian-trained attorneys despite this new wave of RFEs.

Finally, employers petitioning for H-1B classification on behalf of Indian trained lawyers with an LLB degree should also structure the job requirements as a minimum of a bachelor’s degree rather than a JD degree. The Indian trained lawyer should be able to qualify for H-1B classification as it meets the minimum of a bachelor’s degree to qualify as a specialty occupation. However, many Indian lawyers with LLB degrees have also graduated with a Master of Laws (LLM) degree from a US law school. An Indian lawyer with an LL.M should be able to qualify under EB-2 by virtue of this degree as well as for H-1B classification. Our blog deals more with the lawyer who is being sponsored by a US employer with only an Indian LLB degree and the pitfalls associated with its unfortunate downgrade. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

H-1B Enforcement While Working Abroad: Why Are CBP Officers in Abu Dhabi Scrutinizing LCAs?

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By Cyrus D. Mehta and Kaitlyn Box*

Recently, reports have surfaced of issues with U.S. Customs and Border Protection (CBP) Preclearance in Abu Dhabi – namely, that beneficiaries who had been outside the United States were asked questions about whether the conditions described in the Labor Conditions Application (LCA) had been complied with while they were working abroad. The LCA framework and DOL’s protective purpose are defined around H-1B employment in the U.S., which makes CBP’s apparent focus on foreign remote-work patterns somewhat unusual from a traditional LCA-enforcement perspective.

 The American Immigration Lawyers Association solicited examples of these problems in March 2026, and an article from the American Bazaar, despite misstating some information, recounts the plight of an individual who passed through Abu Dhabi preclearance and informed officers that “she had remained in India for close to two months and had worked part time during that period while using her Paid Time Off (PTO)…Officers allegedly determined that she had spent too long outside the United States and questioned the fact that she continued to receive pay from her U.S. employer while working remotely from India. Her visa stamp was reportedly marked ‘Cancelled and Withdrawn,’ and she was told she would need to apply again.” Gnanamookan Senthurjothi, a U.S. immigration lawyer, reported instances of “ increased scrutiny of H‑1B travelers transiting Abu Dhabi’s U.S. preclearance facility, especially on Etihad flights, where individuals who have worked remotely abroad for 2+ months are facing intensive questioning and, in some cases, visa revocation” in a recent LinkedIn post. 

Although it is hoped that these reports are aberrations that CBP will prevent from recurring in future, these reports are troubling. The conditions stated on an LCA, such as a beneficiary’s salary and worksite, are typically construed as applying only to employment within the U.S., as U.S. immigration laws cannot generally regulate employment that takes place abroad.  Because H-1B is a U.S. admission/status classification, a foreign national who is physically outside the U.S. is not ‘in’ H-1B status during that time and, as such, is not required to hold H-1B status to perform services while abroad for a U.S. employer. The immigration consequences arise when that individual seeks re-admission in H-1B classification and CBP or USCIS evaluates whether they have complied with, or will comply with, the terms of the approved petition and LCA.

 The situation in Abu Dhabi raises interesting questions, however, regarding the extent to which activities abroad can impact an employer’s LCA compliance. 

INA 212(n)(2)(C)(vii) specifies that an employer must continue to pay a full-time H-1B worker the wages indicated in the LCA even during a period of “nonproductive period”, if the nonproductive status is “due to a decision by the employer (based on factors such as lack of work)”. This provision prohibits “benching”, or a scenario in which an employer stops paying the required wages to an H-1B worker during periods in which business is slow and there is insufficient work for the individual. Given the types of questions allegedly being raised by officers at Abu Dhabi preclearance, the Department of Labor could hypothetically find that an employer had engaged in “benching” and hold the company liable for back wages if it had not terminated an employee’s H-1B employment in the U.S., and was not paying her the wages listed on the LCA while she worked abroad.

DOL enforcement practice and published decisions tend to focus on underpayment and benching during periods of H-1B employment in the U.S. labor market. There is limited clear authority on how DOL treats extended periods of foreign work where the employer maintains the H-1B petition but modifies pay or duties while the worker is abroad.  Clearly, the US cannot sanction an employer for failing to post notice of the employer’s LCA obligations at a work location abroad. The INA and DOL rules all contemplate compliance of an employer’s LCA obligations when the worker is employed in the US and not at a foreign worksite.

 Ideally, to completely avoid benching liability,  it would be prudent if the employer withdraws the petition while the H-1B worker is employed remotely abroad for long stretches and not paid the required wage. However, this may no longer practical as the employer may have to pay the $100,000 fee under Trump’s H-1B Proclamation when it refiles an H-1B petition on behalf of an overseas H-1B worker to bring them back to the US. Moreover, many remote workers are only working overseas for their US employers because they are waiting for visa appointments or have been subject to “administrative processing” at US posts. Withdrawing the H-1B in these situations would be counterintuitive. 

Due to the war in the Middle East, Abu Dhabi preclearance is not currently operational. CBP has withdrawn officers, who are currently stateside. Travelers routed through Abu Dhabi will be inspected by CBP in the U.S. Hence, the issue is moot at this time, but it may raise its ugly head again when Abu Dhabi preclearance is restored, or if the idea of going after H-1B workers employed overseas catches on with CBP at other ports of entry. Ultimately, CBP should refrain from enforcing the LCA when the worker is employed abroad as there is scant authority for it to do so and it is also impossible to enforce LCA obligations at foreign work locations. CBP can still ask questions about foreign work and pay when those facts bear on whether the underlying H-1B classification remains valid, but it should not be denying admission to H-1B workers because the employer ostensibly did not meet its LCA obligations when the worker was employed abroad. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

New Fields in Form  I-129 for H-1B Classification Need  to Sync with Appropriate Wage Levels in the Lottery and Labor Condition Application

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By Cyrus D. Mehta and Kaitlyn Box*

On February 27, 2026, USCIS published a new edition of Form I-129, which it will accept exclusively beginning April 1, 2026. The new edition of Form I-129 introduces several new fields in the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement. Question 7 through 11 on page 21 of the supplement request the following specific information: 

  • Level of education required for the position
  • Field(s) of study that would qualify someone for the position
  • Years of experience required in order to qualify for the position
  • Special skills required in order to qualify for the position
  • Number of people the beneficiary will supervise, and their position titles

Additionally, question 2 on section 3, page 22 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement requests that the appropriate wage level, I through IV, be selected for H-1B cap petitions. 

Many of these new fields appear designed to comply with the December 2025 Department of Homeland Security final rule that introduced a weighted selection process for the H-1B lottery.  The H-1B registration period for FY 2027 runs from March 4, 2026 to March 19, 2026, at 12 pm ET. 

Under the new system, discussed in detail in a prior blog, instead of a random lottery, registrations for unique beneficiaries or petitions will be assigned to the relevant Occupational Employment and Wage Statistics wage level and entered into the selection pool as follows: (1) registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times; (2) those assigned wage level III will be entered into the selection pool three times; (3) those assigned wage level II would be entered into the selection pool two times; and (4) those assigned wage level I will be entered into the selection pool one time. Pursuant to the new rule, the H-1B cap electronic registration form requires employers to indicate what wage level will be offered to the beneficiary. Although USCIS has not promulgated guidance specifying whether the Labor Conditions Application (LCA) and H-1B petition filed on behalf of a selected beneficiary must match the wage level indicated at the time of registration, it is likely a best practice to ensure that both are in sync. 

The weighted selection rule will incentivize employers to select the highest possible wage level in order to increase the candidate’s likelihood of being selected in the lottery. However, complications could arise when the H-1B petition is filed. If the beneficiary’s job duties appear sophisticated or high level, but the employer is only offering a level I wage, which generally relates to an entry-level role, USCIS can challenge the appropriateness of the wage level. Similarly, USCIS could question the appropriateness of a level IV wage if the employer is offering a higher wage to an employee in order to increase the chances of selection in the H-1B lottery. However, the DHS final rule makes clear that “…if an employer values a beneficiary’s work and the unique qualities the beneficiary possesses, the employer could offer a higher wage than required by the prevailing wage level to reflect that value.” Thus, an employer should not be precluded from paying a level IV wage even to an entry-level worker if that employee’s unique skills, performance, or educational background justify offering a higher wage. 

However, even if the employer as selected a level IV wage in the H-1B lottery,  at the time of preparing the Labor Condition Application (“LCA”), the employer will need to assign the appropriate wage level based on the DOL 2009 prevailing wage guidance. Under the DOL prevailing wage guidance, an entry level employee on first brush may  qualify under level I wage or level II wage rather than Level  IV wage. The employer, on the other hand,  may be able to justify a level IV wage even if an employee has no prior or little experience based on an advanced degree and possessing other specialized skills, qualifications and certifications/licenses that are essential for performing the duties of the position. The level IV wage can further be justified based on the actual wage that is paid to similarly situated workers. Under DOL rule, the employer must pay the higher of the prevailing or actual wage. So even if the prevailing wage would be a level 1 wage but the actual wage is at level 4 wage, the employer must pay the higher level 4 wage. 

Additional complexities can arise once the employer begins the PERM labor certification process on behalf of an employee currently in H-1B status. An employer might be offering an employee a level I or II wage for the present H-1B position, but could have higher requirements for the PERM and I-140 position. For a PERM position that requires a bachelor’s degree and 5 years of experience, however, the DOL is likely to assign a level IV wage in the Prevailing Wage Determination. Although there could appear to be an inconsistency between the H-1B and PERM wage levels, the role described in the PERM is a future role. For beneficiaries from backlogged countries like India and China, this position may only materialize after 10 years or more when they become eligible for adjustment of status. Thus, because the employer is required to project the requirements and salary for a role to be performed many years in the future, it is not inherently problematic for an employer’s requirements, and, therefore, the corresponding wage level, to be substantially higher for a PERM position than for the present H-1B role.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Evisceration of the H-1B Visa Program Through Executive Action

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By Cyrus D. Mehta

The H-1B visa program has been eviscerated through the promulgation of a final rule that would prioritize the allocation of H-1B visas in the lottery to those who are higher skilled and higher paid and through executive action. Relatedly, President Trump issued an executive order that would impose a $100,000 fee on H-1B petitions filed on behalf of beneficiaries who are outside the US. The $100,000 fee will not apply to H-1B petitions filed on behalf of beneficiaries who are already in the US and will also be requesting a change of status to H-1B from another nonimmigrant  status such as F-1 or J-1.  This executive order was recently upheld by a federal district court.  These combined actions have radically changed the H-1B visa program through the stroke of a pen and without any legislation from Congress. 

DHS Finalizes H-1B ‘Weighted Selection’ Rule 

On December 23, 2025, the Department of Homeland Security (DHS) announced a final rule implementing a weighted selection process that generally favors the allocation of H-1B visas to those who are, in the administration’s view, “higher-skilled and higher-paid.” The rule governs the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). DHS received 17,000 comments and made no changes from the proposed rule. Court challenges are expected to follow.

Under the new process, instead of a random lottery, registrations for unique beneficiaries or petitions will be assigned to the relevant Occupational Employment and Wage Statistics wage level and entered into the selection pool as follows: (1) registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times; (2) those assigned wage level III will be entered into the selection pool three times; (3) those assigned wage level II would be entered into the selection pool two times; and (4) those assigned wage level I will be entered into the selection pool one time. Each unique beneficiary will only be counted once toward the numerical allocation projections regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool, DHS said. The new final rule is expected to make it significantly less likely that companies will hire international students when they graduate from U.S. universities.

The final rule,  published on December 29, 2025, is effective February 27, 2026, and will be in place for the Fiscal Year 2027 H-1B cap registration season.

District Court Rules Against Plaintiffs in $100,000 H-1B Fee Lawsuit, Plaintiffs Appeal

In Chamber of Commerce v. Department of Homeland Security, a district court has ruled in favor of the Department of Homeland Security (DHS), finding that imposition of a $100,000 fee for new H-1B applications and related actions were legal under a Presidential Proclamation pursuant to INA 212(f). 

“Defendants have the stronger position,” U.S. District Judge Beryl Howell said. “The lawfulness of the Proclamation and its implementation rests on a straightforward reading of congressional statutes giving the President broad authority to regulate entry into the United States for immigrants and nonimmigrants alike.”

Judge Howell noted, “To be clear, this decision in favor of defendants is not to dismiss or discount the past and ongoing contributions of H-1B workers to the American economy that plaintiffs highlight. Important as those contributions may be, the effects of the H-1B program on the American economy or national security, whether positive or negative, are simply not at issue in this case. The Supreme Court has long maintained that matters of economic and foreign policy are generally entrusted to the political branches of government and ‘rarely proper subjects for judicial intervention.’ ”

The plaintiff groups, the US Chamber of Commerce and the Association of American Universities,  have sought expedited review in the DC Circuit Court of Appeals. The groups said in their emergency consent motion to expedite appeal that neither section of the Immigration and Nationality Act that Trump cited in his proclamation that imposed the hefty fee for the H-1B nonimmigrant visa program “contains the clear statement necessary to delegate to the president Congress’s power to impose taxes on U.S. employers.”

“What is more, the proclamation takes a wrecking ball to Congress’s carefully crafted design of the program — in overriding the program in this manner, it exceeds the bounds of the president’s lawful authority,” the groups said.

Furthermore, multiple states joined an amicus brief supporting plaintiffs in Global Nurse Force v. Trump, filed in the Northern District of California. There is hope that the DC Circuit Court of Appeals and another district court will rule differently from Judge Howell’s decision. The brief in Global Nurse Force v. Trump asks the judge to temporarily block a new Trump administration policy to charge new H-1B immigrant visa applicants a $100,000 fee. Among other things, the states and other plaintiffs argue that the fee would exclude from hiring qualified H-1B workers nonprofits and schools that are unable to afford it.

The amicus brief includes the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Impact of the Combination of the Wage Prioritization Rule and the $100,000 Fee

For further insights, watch my interview on CNBC/TV18 with esteemed colleague Steven Brown regarding the H-1B new rule that will give priority to those being offered level 4 wages and the $100,000 H-1B fee that was upheld by a federal district court.

I have opined that with the $100,000 there will be fewer H-1B petitions filed on behalf of beneficiaries outside the US and most of the beneficiaries competing for the limited 85,000 H-1Bs per year will be mainly students in the US in F-1 status. They may have a better chance of selection even if they are not paid the highest-level wage. 

While the $100,000 may help students in F-1 status in the US, it will not benefit employers who need to also hire workers based overseas especially nonprofits, universities and startups. Even those who were previously counted under a prior H-1B lottery but are based overseas, a new petition filed on their behalf will have to be accompanied by the $100,000 fee. 

The two actions from the Executive Branch will not just kill the H-1B visa program but will also stymie innovation and prevent the entry of talented foreign nationals who will ultimately contribute to the US. It is hoped that courts will find both the actions unlawful and contrary to the INA. 

 

Cyrus Mehta

Navigating the Immigration Maze in an Age of Fear and Hope

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Immigration is one of the most complex areas of the law—so complex that even seasoned lawyers struggle to keep pace with shifting rules, changing interpretations, and unpredictable outcomes.

Yet despite this complexity, people continue to come. They come because the United States has long represented freedom, opportunity, and the promise of a better future. But our immigration system—deeply flawed as it is—too often stands in their way.

A System in Crisis

There are far too few legal pathways for people to come to the United States, whether to reunite with family or to work for employers who genuinely need their skills.

It is unconscionable that highly skilled Indian-born professionals must wait many decades for a green card. These individuals already have bona fide job offers. Their employers tested the U.S. labor market. Their labor certifications were approved. And still they wait—sometimes longer than a human lifetime.

We also see enormous delays in processing petitions for “immediate relatives”—spouses, parents, minor children—people who are supposed to have the most direct legal path. Add to this the unpredictability of visa stamping abroad, and families are thrown into needless uncertainty.

And then comes one of the most frustrating problems: the government repeatedly shifts the goalposts. For instance, a  new public charge policy allows consular officers to deny visas simply because a person has common conditions like obesity or diabetes—a discriminatory and medically unsound expansion of the rule.

Let us not forget that the Trump administration even floated a $100,000 filing fee for H-1B petitions—another unmistakable signal that their objective is not fairness, but exclusion. It then sought to reinterpret and clarify, but caused more confusion. As a result of Trump’s attacks on the H-1B visa program that is widely used by Indian nationals, racists are now openly targeting Indian Americans.

Fear as Policy

As defective as the immigration system already is, President Trump has weaponized it further through cruelty. He rose to power demonizing immigrants, and since his second inauguration in January 2025, he has embraced that cruelty openly.

He empowered people like Stephen Miller and Kristi Noem to unleash ICE in unprecedented ways—detaining noncitizens for lawful speech that displeases the administration.

Foreign students at prestigious U.S. universities have been taken by masked ICE agents simply for protesting Israel’s military operation in Gaza, which has resulted in over 65,000 deaths. 

Visas have been revoked for individuals who criticized the President, including Nobel laureates, or who voiced critical views of Charlie Kirk after his death. All such speech is protected by the First Amendment.

Even U.S. citizens have been caught in these sweeps, creating a level of fear this country has never experienced in modern times. America—once revered as a beacon of freedom—has not seen such weaponization of immigration power since its darkest moments.

Trump and some Republican politicians have openly threatened to deport naturalized citizens in the hope that they can denaturalize them. Mayor-elect Zohran Mamdani has been subjected to vile racist and Islamophobic attacks, all because his ascent represents immigrant power—and that terrifies those who have implemented policies to subjugate them and keep them in line. 

This administration has repeatedly declared that even lawful permanent residents are merely “guests” who may be removed for speech that offends those in power. They portray immigrants as unwelcome, job-stealing, dangerous interlopers—despite the reality that immigrants are the backbone of the labor force in construction, agriculture, caregiving, technology, and countless other sectors.

They imagine an America without immigrants—a fantasy that has never existed and never will.

Authoritarianism Begins With Noncitizens

We must understand this clearly: Authoritarianism rarely begins with citizens. It begins with noncitizens.

Once the rights of immigrants are trampled, as that can be more easily achieved,  this erosion expands outward. By the time citizens recognize the danger, the mechanisms of oppression are already in place.

This is why knowing our rights is essential. You do not have to speak to ICE if approached in the street. Agents need a judicial warrant—not an ICE-issued form—to arrest you.

And we need lawyers willing to defend these rights without fear. Lawyers should also be prepared to challenge the unconstitutional detentions of noncitizens through habeas corpus petitions in federal court. 

The March 2025 White House memo attacking immigration lawyers and Big Law pro bono programs was designed to intimidate us. It echoes the famous line from Henry VI: “The first thing we do, let’s kill all the lawyers.”

The memo claimed lawyers were undermining national security merely for representing asylum seekers. But under the Immigration and Nationality Act, people fleeing persecution have an absolute right to file asylum claims. Ethical lawyers do not file fraudulent cases. Representing the vulnerable is not a threat to America—it is a reflection of America at its best.

The Path Forward

We must vote out politicians who fear-monger on immigration and lack the courage to reform the system. We need a rational immigration framework with more legal pathways to unite families and allow people to work in the US.

We must reject the false narrative that immigrants harm the country. The truth has always been clear: Immigrants are good for America.

 

The Parsi Parable: A Lesson for Our Time

When a group of  Zoroastrian known as Parsis fled Persia and sought refuge in India over a thousand years ago, the local king sent them a vessel filled to the brim with milk, signaling that his land was full.

The Parsi leader asked for a spoonful of sugar. He stirred it gently into the milk without spilling a drop, saying: “Like this sugar, we will sweeten your land without displacing anyone.”

The king understood, and the Parsis went on to enrich India in immeasurable ways— economically, culturally, intellectually, and spiritually.

That story captures everything immigration truly represents:

Newcomers do not weaken a society—they enrich it.

They do not overflow the vessel—they transform it for the better.

 

Immigrant Power Today

Zohran Mamdani’s victory in New York is one such modern testament. In his words:

“New York will remain a city of immigrants, a city built by immigrants, powered by immigrants, and as of tonight led by an immigrant.”

That is the power of immigrant communities.

That is how we resist authoritarianism.

And that is why we must continue to fight—for justice, for humanity, and for the sweetness that immigrants, like sugar in milk, bring to every nation that welcomes them.

(This blog is based Cyrus Mehta’s prepared remarks as a keynote speaker at an IndiXspark event on November 15, 2025 in New York City)

Cyrus Mehta

Biden’s USICS Welcomes Entrepreneurs Through the H-1B and O Visas. Will Trump Do the Same?

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By Cyrus D. Mehta and Kaitlyn Box*

On January 8, 2025, USCIS issued updated guidance in its Policy Manual clarifying how entrepreneurs may qualify for O visas. The guidance states that:

“O beneficiaries may not petition for themselves. However, a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file the petition on their behalf.”

USCIS’ guidance on this point was more ambiguous previously, which created concerns that an O petition filed through a beneficiary’s own company would be viewed as tantamount to self-employment. This updated guidance will afford a clear pathway for entrepreneurs to obtain O-1 visas through their own companies. Interestingly, the new guidance appears to apply to all O beneficiaries and not merely those who qualify for O-1 classification. This guidance also does not require such startups to meet conditions such as their ability to control the O-1’s employment by requiring a majority shareholder or a board of directors. USCIS seems to have relied on old administrative decisions that  recognize the separate existence of the corporate entity as separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).

USCIS’ updated O-1 guidance is in line with a provision in the Department of Homeland Security (DHS)’s H-1B modernization final rule (see our commentary), set to take effect on January 17, 2025. In the final rule, DHS clarified that beneficiaries with a controlling ownership interest in the petitioning entity may still be eligible for H-1B status subject to “reasonable conditions”. In a previous blog, we explored the conditions under which an entrepreneur could qualify for H-1B classification. Even under the existing regulations, it was possible for a startup founder or entrepreneur to qualify for H-1B classification if the petitioning company could establish a valid employer-employee relationship under at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors, and the job qualifies as a specialty occupation under one of the four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). An entrepreneur who was able to meet these requirements through his or her own company would have been eligible for H-1B classification for an initial 3 year period, as well as a subsequent 3-year extension. Although the final rule more clearly states that a beneficiary with a controlling interest in the petitioning organization may nonetheless be eligible for H-1B classification, it limits the validity of the initial H-1B petition and first extension to 18 months each.

It is indeed salutary that the USCIS is thinking of encouraging entrepreneurs to obtain visas through their startups. While it would be ideal if Congress enacted a startup visa, it is at least a good start for USCIS to create pathways within the existing nonimmigrant visa system for entrepreneurs. It is hoped that the new Trump administration continues down the same pathway. Entrepreneurs should be encouraged to come to the US to establish startups that may succeed, and create more jobs and new business models that break the paradigm, which in turn will result in economic growth and create even more jobs. There are many Trump advisors, as well some on the left like Bernie Sanders, who view nonimmigrants on work visas as a threat to US workers and want to curb lawful nonimmigrant pathways to the United States. They are misguided, and it is hoped that they realize the benefits that noncitizen entrepreneurs bring to the US and should not kill the goose that lays the golden eggs!

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Comment to Proposed H-1B Rule Expressing Concern Over New Definition of Specialty Occupation

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December 22, 2023

Submitted via www.regulations.gov

DHS Docket ID No. USCIS-2023-0005

Department of Homeland Security

U.S. Citizenship and Immigration Services

Office of Policy and Strategy

5900 Capital Gateway Dr.

Camp Springs, MD 20588-0009

 

Attn: Charles L. Nimick

Chief, Business and Foreign Workers Division

Re:      Regulatory Proposal for Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers – Comment on Proposed Changes to H-1B Registration Process at 8 CFR 214.2(h)(8)(iii)

Dear Mr. Nimick:

Cyrus D Mehta & Partners PLLC (“CDMP”) is a New York law firm that focuses its practice mainly in the area of US immigration law and represents many clients in H-1B visa matters. CDMP also advocates on behalf of its clients to achieve fairer and just immigration laws, and also posts articles on its widely read The Insightful Immigration Blog, https://blog.cyrusmehta.com, in furtherance of this objective.  CDMP is accessible at www.cyrusmehta.com.

CDMP limits its comments to the proposed new definition of “specialty occupation” and the proposal that the USCIS will look to the  end client’s requirements to determine whether the position qualifies as a specialty occupation.  These are the NPRM that are cause for  concern.

The NPRM’s New Definition of “Specialty Occupation” Contradicts the INA

We commend DHS for clarifying in the proposed regulation that in order for a particular bachelor’s degree to be normally considered the minimum requirement, “normally does not mean always” and that the agency will not differentiate “normally” from the equivalent terms such as “mostly” or “typically” used in the DOL’s Occupational Outlook Handbook (“OOH”) and other sources of information describing the preparatory requirements for occupations. This is consistent with Innova Sols., Inc v. Baran, 983 F.3d 428 (9th Cir. 2020) where the court held that “ … there is no daylight between typically needed, per OOH, and normally required, per regulatory criteria. ‘Typically’ and ‘normally’ are synonyms.”

However, we are deeply concerned that the provision in the NPRM that requires specialized studies to be “directly related” to the position impermissibly exceeds the statutory requirements of the Immigration and Nationality Act  (“INA”). The NPRM at 8 CFR 214.2(h)(4)(ii) states,

A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.

There is no requirement in the INA provision that the required specialized studies must be “directly related” to the position. Under § 214(i)(1) of the Immigration and Nationality Act (“INA”) a “specialty occupation” is  defined as an occupation that requires

  • Theoretical and practical application of a body of highly specialized knowledge, and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

Therefore, in contrast to the requirement in the NPRM that the degree must be “directly related” to the position, the statute at INA § 214(i)(1) clearly provides a substantially broader standard, stating that a requirement of a degree in the specialty or its equivalent can form the basis of a specialty occupation. A federal court explicitly stated that the statutory language defining a specialty occupation includes not only a required degree in the specialty but also other combinations of academic and experiential training that would qualify a beneficiary to perform the duties of the specialty occupation. In Tapis International v INS, the court held that a position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass … various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.

Tapis International v INS, 94 F. Supp. 2d 172 (D. Massachusetts 2000).  The holding of Tapis International therefore specifically precludes the impermissible limitations that the agency seeks to impose in the NPRM by limiting employers to require only degrees that are “directly related.” The language in INA § 214(i)(1) that defines a specialty occupation by the requirement of either a bachelor’s degree or higher in the specific specialty “or its equivalent” as a minimum for entry into the occupation is distinct from the statutory requirement of the qualifications that the H-1B beneficiary must possess to qualify for the specialty occupation. The statute sets forth distinct requirements at INA § 214(i)(2) for the beneficiary to establish his or her qualifications for the specialty occupation, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty.

Therefore, the phrase in the statutory definition of specialty occupation at INA § 214(i)(1), which includes both a bachelor’s degree or higher in the specific specialty and the alternative of “its equivalent” broadens the permissible requirement for a specialty occupation to “not only skill, knowledge, work experience, or training … but also various combinations of academic and experience based training.” See Tapis, supra. Thus, under the statutory language, a position can qualify as specialty occupation not only on the basis of a specialized degree requirement, but also where the occupation requires a non-specialized degree combined with specialized experience, training or coursework as the equivalent of a specialized degree to serve as the minimum requirement for entry into the occupation. The rigid standard in the NPRM that the agency seeks to impose with its requirement that every permissible degree must be “directly related” contradicts the clear language of the statute and is therefore ultra vires and impermissible.

Another area of significant concern to our organization is the agency’s misplaced and impermissible attempt to exclude positions requiring business degrees from the definition of specialty occupation. In its focus on excluding these positions from the definition of specialty occupation, USCIS appears to base its analysis on outdated notions that positions requiring a business degree are too generalized to qualify for H-1B classification. On the contrary, graduates of undergraduate and graduate business programs typically gain high-demand, sought-after skills in specialized STEM and business areas, including data analysis, technology management, accounting, financial forecasting and analysis, and many other disciplines. For many years the agency’s practice has been to provide employers with the opportunity to establish that a position’s requirements and the beneficiary’s qualifications were sufficient to qualify as a specialty occupation through either a business degree with a formal concentration or, alternatively, through a specific combination of coursework, or in some cases specialized professional experience. We urge the agency to recognize this important and long-established policy and practice and continue to allow employers to build a record to establish the specialized needs of sponsored positions to qualify as specialty occupations.

Similarly, we have significant concerns with the language in the preamble to the rule that would disqualify positions that require an engineering degree, without specialization, from qualifying as a specialty occupation. The NPRM states that “a petition with a requirement of any engineering degree in any field of engineering for a position of software developer would generally not satisfy the statutory requirement” as the petitioner may not be able to demonstrate that a range of fields of engineering would qualify the H-1B worker to perform the duties of a specialty occupation. This interpretation is impermissibly narrow and subverts the intent and the plain language of the statute. When a federal court recently overturned an agency denial of an H-1B petition based on the employer’s requirement for a non-specialized engineering degree, the court explained that the statute does not require specialty occupations to be subspecialties. In its analysis, the court stated:

 

Importantly, the INA defines professions — the basis of the H-1B Regulation’s specialty occupation requirement — at the categorical level (e.g., “lawyers” and “teachers,” 8 U.S.C. § 1101(a)(32), rather than “tax lawyer” or “college English professor,” see id.) and specifically includes “engineers,” id. In addition, the specialty occupation provision arose from a need “to meet labor shortages . . . in occupational fields, such as nursing, engineering, and computer science.” 1988 Proposal, 53 FR 43217-01, at 43218 (emphasis added). Put simply, in contrast to a liberal arts degree, which the Service deemed “an [in]appropriate degree in a profession” because of its “broad[ness],” 1990 Rule, 55 FR 2606-01, at 2609, an engineering degree requirement meets the specialty occupation degree requirement.

InspectionXpert Corp. v. Cuccinelli, 1:19cv65, 58 (M.D.N.C. Mar. 5, 2020).

The decision in InspectionXpert, in addition to explaining that the statute disallows the requirement of specialized engineering degrees, aligns with the reality of the workplace and the skills gained in engineering degree programs. While there are many types of engineering disciplines, engineering degree programs provide a common core of advanced quantitative and technological skills that prepare the worker to perform the technical duties of a range of positions in specialty occupations such as Operations Research Analyst, Software Developer or Computer Systems Analyst. Again, we urge USCIS to recognize the long-established practice of allowing employers to build a record to establish the specialized needs of their positions to qualify as specialty occupations, including those where the employer believes that the requirements of a particular position includes a number of engineering degrees or a non-specified engineering degree.

Moreover, the disfavoring of business management and engineering degrees in qualifying a position for H-1B classification flatly contradicts the Biden Administration’s National Security guidance and strategy on “attracting and retaining the world’s best talent” and the President’s October 30, 2023, Executive Order on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.” Executive Order (“EO”) 14110. In studying the AI workforce, experts have found that primary degrees required for core AI job duties are business administration, computer science, engineering, mathematics, and statistics.[i] Yet, USCIS has chosen to provide an example in the preamble explanation of the NPRM cautioning employers about requiring the type of quantitative and problem-solving skills developed in an engineering degree as unlikely to be “directly related” to a qualifying H-1B position, and has proposed codifying in regulation that positions requiring business administration studies should not qualify for H-1B status. This creates unnecessary hurdles for employers engaging in on-campus recruitment in the U.S. where international students account for more than 50% of graduate engineering degrees [ii] and are among those completing a Master of Business Administration or Bachelor of Business Administration,[iii] and deprives our economy of the precise types of AI, technology and national security talent that the Biden Administration is making significant effort to attract and retain.

In conclusion, the proposal to redefine “specialty occupation” will not only contravene the statutory provisions defining the H-1B criteria, but it will make it unnecessarily restrictive and run counter to the Administration efforts to boost our competitive advantage and our economy. See Stuart Anderson’s Biden Immigration Rule Copies Some Trump Plans to Restrict H-B Visas, Forbes (October 23, 2023), which provides examples of emerging occupations vital to U.S. economic growth and competitiveness that may not qualify under the proposed definition of specialty occupation. The views of the undersigned are also reflected in this article.

Therefore, CDMP proposes that USCIS delete the language in proposed 8 CFR § 214.2(h)(4)(ii) stating that “[t]he required specialized studies must be directly related to the position” and “A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, if sufficient to qualify for the position.”

We request that the regulatory language remains consistent with the definition of “specialty occupation” under  INA § 214(i)(1) that  requires “[a]ttainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Also, the proposed regulation should allow for a specific body of knowledge required to perform the job duties of the position to properly interpret “or its equivalent” in INA § 214(i)(1). For instance, if the position of management analyst requires a bachelor’s degree and specialized experience or training, it ought to be considered a “specialty occupation” for H-1B classification if the beneficiary possesses a bachelor’s degree in a liberal arts field and also has experience or training in marketing. Similarly, the position ought to also qualify as a specialty occupation if the candidate possesses a bachelor’s degree in liberal arts but has significant course work in quantitative fields such as statistics and data analytics that would allow the beneficiary to perform the duties of the position of marketing analyst.

 

The End Client’s Requirements Should Not Determine the Degree Requirement

Under the NPRM, for a worker who will be “staffed” to a third-party client site, the client rather than the employer would need to establish that it would normally require a U.S. bachelor’s degree in a directly related specific specialty. We believe that this requirement is unduly burdensome in the normal course of business as it would be difficult for the sponsoring employer to obtain such documentation from a client.

The agency’s reliance in the NPRM on the 5th Circuit’s holding in Defensor v Meissner, 201 F. 3d 384 (5th Cir. 2000) is misplaced. In Defensor, the Court treated the client as a co-employer. In contrast, the H-1B regulations contemplate only the petitioner as the employer. The client does not supervise the H-1B worker or evaluate their job performance. The clients of the petitioner would certainly not want to be viewed as a co-employer and incur potential liability from a claim by the H-1B worker.

Under the NPRM, it is important to note that the educational requirements of the third party would only be taken into account and would only apply if the H-1B worker is contracted in a “staff augmentation” arrangement to the third party as opposed to providing services to the third party.  Defensor v. Meissner involved a staffing agency for nurses that filed the H-1B petitions and contracted the nurses to hospitals. There is a critical distinction between the nurse in Defensor v. Meissner and a software engineer who is providing services to the client rather than being staffed to the client. The absence of clear guidance on this key distinction is likely to result in a proliferation of RFEs resulting in burdens for the employer and inefficient use of government resources.

For these reasons, CDMP proposes that the phrase “or third party if the beneficiary will be staffed to that third party” in 8 CFR 214.2(h)(4)(iii) be deleted.

Sincerely,

 

Cyrus D. Mehta

Managing Partner

 

 

 

 

[i] Autumn Toney and Melissa Flagg, U.S. Demand for AI-Related Talent Part II: Degree Majors and Skill Assessment (September 2020), Center for Security and Emerging Technology, p. 3.

[ii] See e.g., National Science Foundation, Science & Engineering Indicators 2022, “International S&E Higher Education and Student Mobility,” which reported that students on temporary visas earned 50% of engineering Master’s degrees in the United States and over half of U.S. doctoral degrees in engineering (State of U.S. Science & Engineering 2022, National Science Board).

[iii] Higher-ed institutions commonly offer four different types of Business degrees: Bachelor of Arts or Bachelor of Science degrees in Business, which have different distribution requirements and different options for “specialization” as compared to a Bachelor in Business Administration and a Master in Business Administration. The proposed regulatory text would permit an adjudicator to start with a presumption that a Bachelors or Masters in Business Administration cannot be qualifying, based on the label of the degree, and by default ignore a completed minor or concentration, for example, as not being a “specialization,” without obligating the adjudicator in all cases to review and give weight to the transcript.

David Isaacson

Canada Begins New Program for Holders of U.S. H-1B Visas – And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4

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Update: on July 18, 2023, IRCC posted an announcement that the cap of 10,000 applications for the new program had been reached on July 17 and the program was closed. So the below post may be only of theoretical interest unless Canada reopens the program at a later date.

In a previous blog post, I described a new Canadian program for holders of H-1B visas, and flagged the issue that the initial announcement of the program and backgrounder issued by Immigration, Refugees and Citizenship Canada (IRCC) referred to “H-1B specialty occupation visa holders in the US” in such a way as to suggest that an actual H-1B visa stamp was necessary. As I explained in that post, there are multiple circumstances under which one can be in valid H-1B status, but not possess an H-1B visa stamp as such, such as in the event of a change of status or extension of stay. At the time, it was unclear whether this seeming requirement for a visa stamp was merely an imprecision in language. There were also other issues left open by the announcement.

IRCC has now published the application guidance for the new program, and has also posted the underlying temporary public policy established under section 25.2 of the Immigration and Refugee Protection Act. (The temporary public policy is dated June 23, but was only made public on its effective date of July 16.) Unfortunately, it appears from the temporary public policy and the application guidance that IRCC will indeed be requiring principal applicants for an open work permit under the new program to have an H-1B visa stamp, and not merely H-1B status, as well as reside in the United States. The good news is that there is no similar requirement that dependents of principal applicants have either H-4 visas or H-4 status, and indeed some family members who could not qualify for H-4 status will be eligible for the new program.

Part 1, section 1(iii.) of the temporary public policy specifies as one of the conditions to be met that an applicant for a work permit under the policy “holds an H-1B (Specialty Occupations category) visa issued by the United States of America that was valid at the time the work permit application referred to in (i) was submitted”. This reference to a visa, like the one in the original IRCC announcement, could potentially be read as ambiguous, but the application guidance specifies that a visa is a separate document required in addition to an H-1B approval notice and potentially Form I-94. The guidance states:
To apply, you’ll need
• a copy of your current H-1B visa
• Form I-797/I797B, Notice of Action
o This is a letter from the US government confirming your H-1B application was approved.
• proof that you live in the US, such as
o Form I-94, Arrival/Departure Record
o a recent utility bill
o an income tax report
o any document that proves you live in the US

The separate bullet point for “a copy of your current H-1B visa” implies that neither the Notice of Action showing approval of an H-1B application, nor a Form I-94, will suffice without the visa. It is not clear why IRCC has imposed this requirement, but it appears that they have done so.

One piece of good news, however, is that there is no similar requirement for family members of principal H-1B applicants. Indeed, not only are family members of principal applicants not required to have an H-4 visa stamp, they are not even required to have H-4 status, or be eligible for H-4 status. As long as they are a family member of an approved principal applicant under the definition contained in subsection 1(3) of the Immigration and Refugee Protection Regulations (IRPR), and reside in the United States, that is sufficient.

The definition of a family member under subsection 1(3) of the IRPR is somewhat broader than the definition of a family member for H-4 purposes under U.S. law. The IRPR definition includes “the spouse or common-law partner of the person” (here, of the principal applicant); “a dependent child of the person or of the person’s spouse or common-law partner”; or “a dependent child of a dependent child” of the person or the spouse or common-law partner. Thus, common-law partners of H-1B visa holders, children of common-law partners of H-1B visa holders, and some dependent grandchildren of H-1B visa holders and their spouses or common-law partners may be eligible for the new Canadian program although they would not be eligible for H-4 status.

Moreover, the definition of a child for these purposes does not cut off at age 21, as it does for H-4 purposes under INA 101(b)(1), 8 U.S.C. 1101(b)(1). Rather, under section 2 of the IRPR, a dependent child includes one who “is less than 22 years of age and is not a spouse or common-law partner, or . . . is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.” Thus, some 21-year-old children or disabled older children of H-1Bs, who would not be eligible for H-4 status, may be eligible for the new Canadian program, even if they have had to change to some other nonimmigrant status or are stuck in limbo as derivative beneficiaries of long-pending applications for adjustment of status, as long as they reside in the United States. 

Another open question I had raised in my prior blog post was how IRCC was going to allocate the 10,000 available numbers for principal applicants under the new program. Now that the effective date has passed without any announcement of a lottery or similar allocation mechanism, it appears that IRCC is simply going to allocate the numbers to the first 10,000 approved applications.

A third open question at the time of the announcement resulted from language on an IRCC guidance page for high-skilled workers that suggested applicants might want to consider the new program if “your US work visa is expiring soon”. Fortunately, however, nothing in the temporary public policy or the application guidance indicates that any particular date of H-1B expiration is required. The guidance page notwithstanding, even someone with, say, two and a half years left out of an H-1B petition and visa with three years validity, should qualify for the new program.

The new Canadian program has attracted significant positive media attention, which has understandably focused on the broader picture rather than details such as the distinction between H-1B visas and H-1B status. I do not mean to suggest, by highlighting this seemingly arbitrary distinction, that it should overshadow the other positive aspects of the program, or the implications that the program has for U.S. immigration policy. And it is good to see that IRCC will not be requiring dependent family members to meet U.S. requirements for an H-4 in order to benefit from the new program. But it would be even better if IRCC could remove the arbitrary exclusion of those who have changed status to H-1B or otherwise lack a valid H-1B visa, and open up the temporary program to H-1B nonimmigrants who reside in the United States in H-1B status even if they do not have H-1B visa stamps.

Cyrus Mehta

No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration

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Cyrus D. Mehta and Isabel Rajabzadeh*

The Standard Occupation Classification (SOC) is a federal statistical standard used by federal agencies to classify workers into occupational categories. The Office of Management and Budget (OMB) coordinates the Federal statistical system, including the SOC. The SOC Policy Committee assists the OMB in the SOC revision process, and is comprised of Federal agencies including the Bureau of Labor Statistics, Department of Labor. Most notably, SOC codes are used to categorize nonimmigrant and immigrant workers on the Permanent Employment Certification (“PERM” or Form ETA 9089, used to file most I-140s),  the Labor Condition Application (“LCA”, necessary to file H-1Bs and other visas) and the ETA 9142B for H-2B workers. The SOC system was created in order to facilitate job classification. It therefore collects occupational data and enables comparison of occupations across data sets.

In assigning the correct SOC code for employment-based petitions, one must compare the proffered position’s job duties and its requirements against the system. In addition, the requirement to pay prevailing wages as a minimum salary is mandatory for some employment-based visas. In order to determine the prevailing wage of a geographic area, one must look up the SOC code in the Foreign Labor Certification Data Center Online Wage Library (“OWL”) which is run by the U.S. Department of Labor.

According to the Department of Labor, the SOC serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET database includes detailed information on tasks, skills, tools used, credentials, and other information associated with the occupations. Much like the OWL, the information found on O*NET is listed by the occupation’s SOC codes.

Many may not realize the SOC codes exist, however, its use is integral to some employment-based visas and therefore, can result in a denial if not used properly. These codes are based on statistics, however, what happens when the system is updated? The SOC has been revised four times: 1980, 2000, and then again ten years later in 2010. The most recent update is the 2018 SOC system, which was deemed to be a “multi-year process” by the U.S. Bureau of Labor Statistics. In November 2020, the O*NET 25.1 Database incorporated the O*NET-SOC 2019 Taxonomy, which aligned with the 2018 SOC system. It stated, “updates and added new and emerging occupations ensure that the O*NET-SOC taxonomy not only represents the SOC structure, but reflects changes occurring in the world of work due to advancing technologies, innovative business practices, and the new organization of work.” However, the OWL still has not caught up with all of the SOC codes listed in the 2018 SOC system. Although the OWL states it integrated O*NET 25.3 on July 1, 2021, (which is later than version 25.1) it still does not reflect all of the changed SOC codes in the 2018 SOC system.

The Problem

In an effort to transition between the different SOC systems and SOC codes, “crosswalks” were developed to portray the changes of that year’s update. The crosswalks show which SOC code was replaced by a different title and/or SOC code number. The crosswalk from the 2000 SOC to the 2010 SOC can be found here. The crosswalk from the 2010 SOC to the 2018 SOC can be found here. As stated above, the OWL fails to keep up with the changes in the SOC codes. This causes huge discrepancies. Although not always detrimental to a case, it may cause unnecessary delays such a Request For Evidence (“RFE”).

For instance, “15-1031, Computer Software Engineers, Applications” is no longer in use and it was replaced by “15-1132 Software Developers, Applications” in the 2010 SOC system. Then, the 2018 SOC system changed the SOC code again to, “15-1252, Software Developers.” But what happens when a PERM was filed in 2011 which used the SOC code based on the 2010 SOC system? Then, 10 years later, the foreign national wants to downgrade their I-140 to take advantage of EB-3 priority dates? Which SOC code should be used on the I-140 form? Use of the 15-1031 SOC code would patch the previously filed PERM, however, it is no longer in use so that may raise flags. Use of the new SOC code may be effective, however, it may trigger a Request for Evidence. Even if there is an RFE, it could be overcome by explaining that 15-1132 (Software Developers, Applications) has replaced 15-1031 (Computer Software Engineers), which in turn has most recently been replaced by 15-1252 (Software Developers).

Not only are immigrant visas affected by this but the H-1B system also relies heavily on SOC codes. What happens when an SOC code like 15-1132 is used on an LCA because the new SOC code 15-1252 is not reflected in the OWL and thus, one cannot reference the most relevant information to determine the position? Although usage of the “older” SOC codes on LCAs seem to be permitted by the USCIS, there is significantly less detailed information on the OWL for each SOC code than O*NET. While the O*NET provides detailed explanations for each SOC code based on the 2018 SOC System, we are left using the 2010 SOC system to determine prevailing wage information. In responding to specialty occupation RFE’s, this system forces individuals to not only argue the specialized nature of the position, but that the O*NET also sees it as a specialty occupation in order to strengthen the argument. In some cases, this requires one to dig into the O*NET archives to find the older 2010 SOCs.

In an occupation like technology it is understandable that SOC codes require changes. However, the impact of these changes on petitions filed by employers for immigrant and nonimmigrant visa classifications are not formally addressed, and therefore, require us to connect the SOC code dots.

Finally, it should be noted that the Office of Foreign Labor Certification Data Center (“OFLC) has delayed the implementation of the 2018 SOCs to July 1, 2022. While O*NET has updated its system to the 2018 SOCs, the 2010 SOCs are archived in O*NET. Stakeholders can only use the 2010 SOCs until July 1, 2022, when the OFLC makes them go live in the Foreign Labor Application Gateway (FLAG), OWL, and in the PERM portal.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.