Tag Archive for: Administrative Procedure Act

Cyrus Mehta

Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa

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By Cyrus D. Mehta & Kaitlyn Box*

On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran,  which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No. 19-16849, *4.  USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation. Id. at 5-6. USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree”, thereby implying that some individuals employed as computer programmers do not have bachelor’s degrees. Id.

In a prior blog, we have discussed the outcome of the Innova Solutions, Inc. v. Baran case at the District Court level. The U.S. District Court for the Northern District of California heard the case in 2018, and held that the position of Programming Analyst, categorized under the OOH’s Computer Programmer classification, did not qualify as a specialty occupation because the OOH’s description for Computer Programmer stated only that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree”. Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, *17.

The Ninth Circuit reversed the District Court’s grant of summary judgment to USCIS, and remanded the case, holding the USCIS’ denial of the visa was arbitrary and capricious. The court first examined the OOH language, holding that USCIS’s denial of the petition on this basis was arbitrary and capricious. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation. Id. The court found there to be no appreciable difference between these two descriptions, stating that: “[t]here is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria”. Id. Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, lambasting USCIS’s reasoning as “beyond saving” and stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

The court was similarly unpersuaded by USCIS’s argument that OOH language stating that “some employers hire workers with an associate’s degree” indicates that a bachelor’s degree is not normally required for the position. Id. at 10. In fact, the court reasoned, this language is entirely consistent with the regulatory criteria, which requires only that a bachelor’s degree “normally”, and not “always”, be required for entry into an occupation. Id. The court stated that “[w]hile agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which limited Auer deference to “genuinely ambiguous” regulations. Id. at 10-11.

The court also held that USCIS’s denial was arbitrary and capricious because it mischaracterized the language in the OOH. Id. at *12-13. The USCIS decision claimed that the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify”, when in fact it states merely that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” Id. at 13. While it acknowledged that “a factual error is not necessarily fatal to an agency decision”, the court found USCIS’s misconstruction of the OOH language to be arbitrary and capricious in this instance because whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. Id.

Finally, the court found USCIS’s decision arbitrary and capricious because it failed to consider key evidence. Id. at *14. The court reasoned that OOH language stating that a bachelor’s degree is the “[t]ypical level of education that most workers need” to become a computer programmer was prominently featured on the OOH landing page and of central importance to the USCIS’s determination, but the USCIS failed event to mention this language in its decision. Id.

While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum that rescinded earlier 2000 guidance that acknowledged the position of computer programmer as a specialty occupation. The 2017 policy memorandum relied on the current language in the OOH as basis for rescission of the earlier guidance. Importantly, the Ninth Circuit in Innova Solutions held that this same language from the OOH does not contradict the regulatory criteria at 8 C.F.R. 214.2(h)(4)(iii)(A), effectively undercutting the USCIS’ rationale for issuing the 2017 memorandum.

Additionally, Innova Solutions represents the first recent reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. In Defensor v. Meissner, for example, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it employed on the grounds that the end hospital where the nurses were placed was really the supervising entity, and reasoning that no evidence suggested these hospitals required the nurses to possess bachelor’s degrees.  Defensor v. Meissner, 201 F.3d (5th Cir. 2000). In Defensor, the court held that the held that the criteria in 8 CFR § 214.2(h)(4)(iii)(A) are merely necessary conditions, rather than necessary and sufficient conditions, to establish that a position is a specialty occupation, a decision the USCIS often cites in H-1B RFEs. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of USCIS’s position that a position which requires a degree in a specific specialty related to the duties and responsibilities of the job should be accorded more weight than a generic degree requirement. Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007). Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.

The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. See, e.g., Taylor Made Software, Inc. v. Cissna, Civil Action No. 2019-0202 (D.D.C. 2020); Relx, Inc. v. Baran, 397 F. Supp. 3d 41 (D.D.C. 2019); Next Generation Technology v. Johnson, 15 cv 5663 (S.D.N.Y. 2017). In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.

Finally, one cannot overstate the growing importance of Kisor v. Wilkie in limiting the USCIS’s ability to exercise broad discretion in interpreting its own regulations under Auer precedent. Auer v. Robbins, 519 U.S. 452 (1997). In its decision in Innova Solutions, the court acknowledges that Auer deference applies only to genuinely ambiguous regulations, which 8 C.F.R. 214.2(h)(4)(iii)(A) is not. The court’s decision reminds the USCIS that Auer deference is not a broad license to deny meritorious H-1B petitions.

*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

Can the Arbitrary and Capricious Standard Under the Administrative Procedure Act Save DACA?

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The Supreme Court announced on June 28, 2019 that it would consider the legality of President Trump’s ending of the Deferred Action for Childhood Arrivals Program.  Although federal courts in New York, California and Washington DC have blocked Trump’s efforts to block DACA, the Supreme Court decided to take up the matter striking fear in the hearts of Dreamers. The Supreme Court had previously declined to take up DACA, and so it needn’t have prematurely considered the ongoing challenges in the lower courts to Trump’s rescission of the program, which have benefitted 800,000 Dreamers.  Given the Supreme Court’s new conservative majority, there is a chance that the Court could uphold Trump’s action. It is indeed paradoxical that the nation’s highest court is viewed with fear by many vulnerable immigrants rather than as a protector of their rights.

Still, even though DACA was initiated by President Obama as an executive action, it cannot be arbitrarily and capriciously rescinded by the next president.

In one of the lower court decisions in April 2018, NAACP v. Trump, Judge Bates invoked 5 U.S.C. §706(2)(A) of the Administrative Procedure Act to stay President Trump’s decision to rescind DACA.  The APA provides that a court “shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Judge Bates ruled that the Trump administration provided scant legal reasoning to support its justification that DACA was unlawful. “A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do,” Judge Bates opined in a further ruling in August 2018.

The ability for a court to set aside a decision by the administration under the Administrative Procedure Act if it is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law” is a powerful tool. It can be invoked by a foreign national who may no longer be able to remain in the United States based on the government’s unlawful actions. §706(2)(A) has also been successfully invoked in recent challenges to denials of H-1B requests by employers and foreign nationals.

Will the Supreme Court rely on §706(2)(A) to hold that Trump’s justification was arbitrary and capricious? One can find a clue in the Supreme Court’s recent decision in Department of Commerce v. New York where it questioned the Commerce Secretary’s insertion of a citizenship question in the 2020 census form. Plaintiffs challenged the insertion of the citizenship question on the ground that it would result in a chilling effect. Census Bureau experts had warned that adding the citizenship question would result in a significant undercount of households with at least one noncitizen member. The Supreme Court, in this case, examined whether the Commerce Secretary’s action was arbitrary and capricious under 706(2)(A) of the APA. Mr. Ross’s reason for adding the citizenship question was “solely” because the Justice Department “initiated the request” for the purpose of enforcing the Voting Rights Act, which relies on  data collected by the Census Bureau.  However, Chief Justice Roberts, writing for the majority along with the four liberal justice, indicated that “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” The chief justice further opined that the voting rights rationale offered by Mr. Ross depended on an “incongruent” explanation that was not supported by proper evidence. “It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Chief Justice Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.” The Supreme Court remanded the matter to the lower court so that the Commerce Department could provide a better explanation.

The Supreme Court’s decision in Department of Commerce v. New York may provide a sliver of hope on how the Supreme Court may rule, if Justice Roberts and the four liberal justices again reach agreement that the administration’s justification in rescinding DACA was arbitrary and capricious under the APA. The key issue is whether the post hoc rationalization by the Trump administration for rescinding the DACA program by DHS Secretary Nielsen  was arbitrary and capricious in light of an earlier 2014 Department of Justice memo justifying its legibility.

The Trump administration’s animus against immigrants is no secret, and all its actions, whether it was the imposition of the travel ban against nationals of mainly Muslim countries or the repeal of DACA are driven by this animus. It is thus heartening that the Supreme Court did not make the same mistake as it made in Trump v. Hawaii by taking at face value Commerce Secretary’s “contrived” explanation for adding the citizenship question. It is hoped that the Supreme Court will continue on the same trajectory when it rules on  President Trump’s rescission of DACA, and emphasize that although President Trump has broad powers relating to immigration, his actions must be held against the arbitrary and capricious standard under §706(2)(A) of the APA. Since most of the Trump administration’s actions have been executive rather than legislative, challenging them under the APA appears to be the most viable and effective path. Justice Robert’s invocation of Justice Friendly in the census decision is especially relevant as the Supreme Court continues to review Trump’s executive actions relating to immigrants:

Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Cyrus Mehta

Fearlessly Challenging H-1B Visa Denials Through Litigation

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By Cyrus D. Mehta and Eleyteria Diakopoulos

As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Program expressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). The USCIS has also challenged H-1Bs based on allegedly inappropriate wage levels, but the main concern is the USCIS entirely reading out acknowledged specialty occupations from the law.

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

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A) (emphasis added).

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the OOH in order to justify a denial. A denial often focuses on the following language:

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.

(…)

Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” (emphasis added). USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation. If a petitioner receives a denial of an H-1B petition based on this same reasoning, which is contrary to the law, mounting a challenge in federal court may be worth considering. Petitioners are gun shy about suing the government in federal court out of fear that the government may retaliate against them on other cases. That may not be necessarily so as one has anecdotally heard that the USCIS is terrified of litigation as it creates more work and could also result in a precedent that may be unfavorable for the government’s position in future cases. This is not surprising, however, given the repeated failure of USCIS to appropriately interpret the law in accordance with the INA. In reality, due to the quota system on which USCIS operates, the vast majority of USCIS officials do not care and do not have time to retaliate against litigious petitioners. Indeed, USCIS may pay more attention to cases that may potentially be litigated and give the benefit of doubt to the petitioner over a close call.

Recently, attorney Michael E. Piston, a fearless litigator, on the behalf of petitioner Delta Information Systems, bypassed the AAO and filed a complaint in the U.S. District Court for the Central District of California with this argument pursuant to §10b of the Administrative Procedure Act (APA), 5 U.S.C. § 702. In the complaint, plaintiffs Delta Information Systems, Inc. (Delta) and Srinivasa Narasimhalu allege that the Director of the California Service Center (CSC) of the USCIS erred in denying Delta’s Form I-129, Petition for Nonimmigrant Worker as a temporary worker in a specialty occupation (H-1B) on behalf of Mr. Narasimhalu and in denying Mr. Narasimhalu’s application to extend his H-1B nonimmigrant status in the United States. Plaintiffs ask the court to hold unlawful and set aside these decisions of the CSC Director that were arbitrary, capricious, and not in accordance with the law. Mr. Narasimhalu is a native of India who Delta lawfully employed as a computer professional from November 1, 2011 to February 27, 2018 with the authorization of USCIS. His education and experience has been evaluated as the equivalent of a Bachelor’s Degree in Computer Information Systems.

The plaintiffs first argue that USCIS erroneously determined that no employer-employee relationship existed between Delta and Mr. Narasimhalu. In fact, Mr. Narasimhalu has been an employee of Delta, with USCIS authorization, for over six years, and it is undisputed that the sole right to control Mr. Narasimhalu’s work activities belongs to Delta. This ground is frequently invoked by the USCIS when the H-1B worker is placed at a third party site.  In its decision, USCIS concedes that for purposes of H-1B visa classification, the terms “employer,” “employed,” “employment,” or “employer-employee relationship” are undefined. The complaint notes that because these terms are undefined by the agency, it is necessary to look to the common law definition. Citing to Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the complaint explains that in determining whether one is an employee, the consideration is the hiring party’s right to control. Citing to Chin v. United States, 57 F.3d 722, 725 (9th Cir. 1995), the complaint argues that the decision was not in accordance with the law to the extent that it was premised upon the assertion that Delta had to actually direct or control the work of Mr. Narasimhalu rather than merely having the right to control his work. In fact, USCIS in its decision observes that a “United States employer” is defined as one who “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee …” (emphasis added). Consistent with Clackamas, Darden, and Chin, the fact that an employer “may” control the work of an employee, instead of “must,” proves that it is only the right to control rather than the actual exercise of the right that is determinative of an employer-employee relationship. In Mr. Narasimhalu’s case, his contract with Delta expressly provides that Delta has the complete right to control his work. Additionally, the entity controlling the location where Mr. Narasimhalu will perform his work, Nabco Entrances, Inc., disaffirms having any right to control Mr. Narasimhalu’s work and fully corroborates that Delta has the complete right to control Mr. Narasimhalu’s work and will control his work. Thus, it was arbitrary and capricious to decide that Delta lacks an employer-employee relationship with Mr. Narasimhalu.

The plaintiffs also argue that USCIS erred in concluding that the job of computer systems analyst was not a specialty occupation where it is undisputed that most computer systems analysts have a bachelor’s degree in a computer related field. As a reminder, 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) provides that if a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position, then that position qualifies as a specialty occupation. Citing to Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017), the complaint emphasizes that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation. Furthermore, in its decision, USCIS pointed out, as a basis for its denial, that “computer system[s] analysts have degrees in a wide range of unrelated degrees including computer related degrees, business degrees and liberal arts degrees.” Citing to (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), the complaint notes that consistent with the Next Generation Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” (emphasis added). This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, a U.S. District Court said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.” Residential Fin. Corp. v. United States Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). The complaint makes clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. Since it is undisputed that most computer systems analysts hold degrees in a computer related area, USCIS did not act in accordance with the law in deciding the position not to be a specialty occupation.

Attorneys who also face this obstacle should similarly challenge an H-1B denial directly in federal court in order to avoid wasting any time. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the AAO and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Some examples of recent successful litigation include Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531 (S.D.N.Y. Sep. 29, 2017) and Raj & Co. v. U.S. Citizenship & Immigration Servs., 85 F. Supp. 3d 1241 (2015). In Next Generation Tech., the court failed to see a rational connection between the evidence in the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS’s conclusion that “computer programmers are not normally required to have a bachelor’s degree.” 2017 U.S. Dist. LEXIS 165531 at *20-21.The Court found that USCIS did not present a fair reading of the OOH and failed to satisfactorily explain its determination that a computer programmer was not a specialty occupation. Id. at *21-22. In Raj & Co., the Court found that USCIS abused its discretion in determining that a position for a market research analyst did not come within the first criterion of the regulation of a specialty occupation. 85 F. Supp. 3d at 1246. The Court reasoned that USCIS impermissibly narrowed the plain language of the statute when it concluded that a bachelor’s degree being typical did not require the degree as a minimum for entry into the occupation. Id. at 1247. Even if the USCIS invokes the lack of an employer-employee relationship as a ground for denial when an H-1B worker is assigned to a client site, one should point out that the goal of USCIS’s latest policy memo concerning third party relationships is to exercise more scrutiny on contractual arrangements with third parties rather than deny the legitimacy of such an arrangement. The USCIS in its policy memo acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program. These cases show that it is unjustified to deny highly qualified foreigners the opportunity to work in specialty occupations in the United States based on a narrowed reading of the OOH. Hopefully, with continued pushback, the federal courts will put an end to such arbitrary denials.

Another reason to sue is that advocacy is no longer effective with the Trump administration. Although there are good policy arguments to approve legitimate H-1B visa petitions in a full employment economy as it makes U.S. employers more competitive, resulting in further jobs, they make no difference if high level immigration officials are driven by another agenda based on white nationalism and xenophobia. The same officials who spend their time conjuring up restrictive policies for purposes of denying H-1B petitions will need to focus their efforts in defending litigation within an agency with a finite budget. Moreover, challenging a denial under the APA is not as time consuming as it seems as there is generally no discovery, depositions, or interrogatories, although there may be some exceptions. It requires drafting a complaint, researching and writing a motion for summary judgment, reviewing and opposing the government’s motion for summary judgment and drafting a reply brief. Business immigration lawyers and their clients have generally refrained from suing. This is understandable as litigation is time consuming and a federal court may still give deference to the government’s reasoning behind a denial. We can try to overcome denials by responding to RFEs and appealing to the AAO. But after that, if you still want to show that you are right and the government has gotten it completely wrong, then it may be time to sue the government. Federal judges may have a different reaction than the typical USCIS adjudicator. They may be shocked and viscerally angry at the way the USCIS is interpreting the law and may just about reverse the denial!

Update: After the blog was posted, it was noticed that the complaint in Delta Information Systems, Inc. v. USCIS had been voluntarily dismissed. Michael Piston has informed the authors that a new complaint will be refiled with the beneficiary as the plaintiff. Further Update: On April 3, 2018, the complaint was refiled on behalf of the Beneficiary, Mr. Narasimhalu, as the plaintiff. The complaint asserts that plaintiff has standing to bring an action where he suffered an injury in fact, there is a causal connection between the injury and the conduct complained of, and it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Eleyteria Diakopoulos  is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC. The authors also thank Sophia Genovese and David Isaacson for their assistance.

Cyrus Mehta

It’s Deja Vu All Over Again: State Department Moves Filing Dates Back From Previously Released October Visa Bulletin

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On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals to file adjustment of status applications in the United States or visa applications overseas once their filing dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications that would result in green cards. The filing of an adjustment application affords significant benefits such as work authorization, travel permission, the ability to exercise job mobility as well as the ability to protect the age of a child under the Child Status Protection Act.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.” Potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates may have to wait many months for their filing dates to be current enough so they can file, unless the situation changes. Advocates are vowing to pursue possible avenues to make that happen.

As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. Both versions of the October Visa Bulletin now view it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current.

As proposed in a 2014 blog, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3).  Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates. Rather the government could have advanced them.

It is not clear what the government’s motivation was to move the dates backwards when there was no legal need to do so.   Was it that the USCIS could not have been able to cope with the increase in adjustment filings or was it something more sinister such as USCIS or DOS officials with anti-immigrant tendencies gaining the upper hand and deciding not to grant benefits so easily to those caught in the crushing backlogs?  Litigation options are potentially available. under the Administrative Procedure Act on the grounds that the government acted arbitrarily and capriciously. During the July 2007 visa bulletin fiasco, when the American Immigration Council’s Legal Action Center threatened litigation after it rescinded the bulletin that made EB dates current, the government backed down. Any litigation strategy must ensure that the dual date system remains intact as a court could well resolve the issue by voiding the filing dates and restoring only one priority date as before.

Below are a few examples of the extreme changes in the revised October Visa Bulletin:

 

  • EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
  • EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
  • EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
  • FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
  • FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The very least that the DOS and the USCIS should do is to allow a 30 day period for people who could have previously filed on October 1 to be able to do so. One saving grace is that even the revised October Visa Bulletin preserves the dual filing system, and thus there is flexibility in determining visa availability for purposes of establishing more advantageous filing dates in the future. In addition to litigation, consider pursuing other forms of advocacy. During the July 2007 visa bulletin fiasco, thousands of would be applicants sent roses Gandhi-style to the USCIS as a sign of peaceful protest. People should also sign this White House petition in order to get the requisite number of signatures so that it may be considered by the President. In the words attributed to Yogi Berra who died recently, “It’s Deja Vu All Over Again.” Of course, one will experience a more pleasant sense of deja vu if the government restores the earlier filing dates in the October 2015 visa bulletin like it did with the July 2007 visa bulletin.

Cyrus Mehta

WHEN AN AMENDED H-1B PETITION IS NOT REQUIRED EVEN AFTER MATTER OF SIMEIO SOLUTIONS

/1 Comment/in /by
By  Cyrus D. Mehta

The AAO decision in Matter of Simeio Solutions, LLC,  26 I&N Dec. 542 (AAO 2015) has already caused headaches as it will make it more costly and burdensome for employers who hire H-1B workers. An overview of the AAO decision can be found at AAO Firmly Tethers H-1B Workers To The LCA Like A Dog Is To A Leash. In Matter of Simeio, the AAO concluded that changes in the beneficiary’s places of employment, resulting in the obtaining of a new Labor Condition Application (LCA) constituted a material change to the terms and conditions of employment as specified in the original petition,  thus necessitating the filing of an amended petition. 
Every time an H-1B worker moves to a location not covered in the LCA, the employer will have to file an amended petition. The filing of an amended H-1B petition will incur additional costs for an employer. At an April 30, 2015 DHS Ombudsman call on the AAO decision,  it was estimated that if an employer moves 50 workers three times a year, that would be 150 amended petitions resulting in half a million dollars in legal fees and costs.   It will also give a right to the USCIS to adjudicate the H-1B petition as no deference is given to a prior approval when there is a material change in the employment. It is also a fact that the USCIS Vermont Service Center and California Service Center do not always apply consistent standards when adjudicating H-1B petitions. If the Vermont Service Center approved an H-1B petition, and the worker will be assigned to a work location within the jurisdiction of the California Service Center,  there is a likelihood that the amended H-1B petition will be adjudicated under a stricter standard, resulting in a Request for Evidence and even a denial. 
Prior to Simeio Solutions, employers relied on informal USCIS guidance indicating that so long as a new LCA was obtained prior to placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO has now explicitly stated in Simeio Solutions, footnote 7, that the Hernandez guidance has been superseded. Employers who relied on the prior guidance who file amended H-1B petitions to comply with Simeio Solutions should not be penalized for not previously filing an amended H-1B petition by deeming that the H-1B worker fell out of status. 
When is an amended petition not legally required even after Simeio Solutions? 
Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required and nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment. So a move to a new job location within New York City would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.
There is also nothing in the law and regulations that require an employer to first obtain an approval of the amended petition prior to placing a worker there. Footnote 11 in the Simeio decision suggests that the new LCA, along with the amended H-1B petition, must be submitted, before the beneficiary would be permitted to begin working in the new place of employment. It does not suggest that the amended H-1B petition has to be approved before the worker would be permitted to work. Still, there is an exception in the DOL regulations to immediately filing a new LCA, and by corollary an amended H-1B petition, even when an H-1B worker is moved to a new location. Employers may take advantage of the short term placement exception at 20 CFR 655.735. Under the short term placement exception, an employer may under certain circumstances place an H-1B worker at a new job location for up to 30 days, and in some cases 60 days (where the worker is still based at the original location), without obtaining a new LCA. Thus, when an employer needs to urgently transfer an H-1B worker to a new location, it can do so under the short term placement exception without needing to also immediately file an amended H-1B petition. This exception is limited, though, since if the H-1B worker is placed at the new location for more than the 30 or 60 days, the employer needs to obtain a new LCA and also file an amended H-1B petition. An employer also cannot use the short term placement exception if there is already an existing LCA at that location. 

While readers should review the short term placement rule in its entirety, an employer who wishes to take advantage of this rule must:

(i) Continue to pay such worker(s) the required wage (based on the prevailing wage at such worker’s(s’) permanent worksite, or the employer’s actual wage, whichever is higher); 

(ii) Pay such worker(s) the actual cost of lodging (for both workdays and non-workdays); and 

(iii) Pay such worker(s) the actual cost of travel, meals and incidental or miscellaneous expenses (for both workdays and non-workdays). 

Finally, if an H-1B worker is placed at a location that is considered a non-worksite under 20 CFR 655.715, which does not trigger an LCA,  the AAO decision is also inapplicable. Non-worksites include locations where employee developmental activity is conducted such as management conferences, staff seminars, etc. Non-worksites may also include locations where little time is spent by the employee at anyone location, and where the worker’s job is “peripatetic in nature.” They may also include situations where the H-1B worker’s job is spent at one location but where the worker occasionally travels for short periods to other locations  “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715 provides the following examples of non-worksites, although readers are well advised to read the rule in its entirety:

A computer engineer sent out to customer locations to “troubleshoot” complaints regarding software malfunctions; a sales representative making calls on prospective customers or established customers within a “home office” sales territory; a manager monitoring the performance of out-stationed employees; an auditor providing advice or conducting reviews at customer facilities; a physical therapist providing services to patients in their homes within an area of employment; an individual making a court appearance; an individual lunching with a customer representative at a restaurant; or an individual conducting research at a library.

The regulation also provides the following examples of “worksites” that would trigger a new LCA, and now under Simeio, an amended H-1B petition: 

A computer engineer who works on projects or accounts at different locations for weeks or months at a time; a sales representative assigned on a continuing basis in an area away from his/her “home office;” an auditor who works for extended periods at the customer’s offices; a physical therapist who “fills in” for full-time employees of health care facilities for extended periods; or a physical therapist who works for a contractor whose business is to provide staffing on an “as needed” basis at hospitals, nursing homes, or clinics. 

Employers will soon feel the brunt of the AAO decision as they start moving H-1B workers, which in some industries like IT, accounting and management consulting is the norm. The exceptions to filing an amended H-1B petition while useful are still limited. As employers feel overly burdened by the AAO decision, they may consider resorting to litigation as the AAO has created a new rule without going through the appropriate notice and comment procedure under the Administrative Procedure Act.  According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cites INA 101(a)(15)(H)(i)(b), 8 CFR 214.2(h)(4)(i)B)(1) and 20 CFR 655.700(b) to support its position, but none of these provisions seem to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.”   The DOL certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security. The AAO’s invention of a new rule relating to the validity of the LCA is also ripe for litigation. Finally,  an H-1B worker should not found to be in violation of status for failure to file an amended H-1B petition prior to Simeio. If the USCIS begins to retroactively apply Simeio so as to penalize employers and H-1B workers, this too would be ripe for federal court litigation.