Tag Archive for: Appeals Administrative Office

Cyrus Mehta

The Differing Impact of Foreign Entity Changes on an L-1 Extension and EB-1(C) Petition

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By Cyrus D. Mehta and Rebekah Kim

U.S. Citizenship and Immigration Services (USCIS) has issued a final policy memorandum designating Matter of F-M- Co. as an Adopted Administrative Appeals Office Decision. The decision clarifies that for employment-based first preference category multinational executives or managers, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at the time the petition is filed, and maintain that relationship until the petition is adjudicated. It also clarifies that if a corporate restructuring affecting the foreign entity occurs before the immigrant visa petition is filed, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.

This differs markedly for an L-1 extension. In our prior blog, Questions Arising From Foreign Entity Changes after an L-1 Petition is Approved, we explained that an extension request can be made for an L-1 even if the foreign entity (i.e., parent, affiliate, subsidiary) that employed the foreign national on the L-1 visa has dissolved and there is no successor in interest or successor entity, so long as there is a foreign qualifying entity, even if that foreign entity is not the one that employed the beneficiary. According to 8 CFR §214.2(l)(1)(ii)(G)(2), the employer must be doing business in the U.S. and at least one other country for the duration of the employee’s stay in the U.S. as an L-1 nonimmigrant. A foreign qualifying entity, also, must be doing business the entire time the beneficiary is in L-1 status. However, it is less clear whether the foreign qualifying entity needs to be the same one that employed the L-1 while s/he was abroad. Still, an old decision of the Board of Immigration Appeals, Matter of Chartier, 16 I&N Dec. 284 (BIA 1977), provides clarity. In Matter of Chartier, the L-1 employee was employed by a company in Canada, then transferred to work for the same employer in the U.S. The Service granted, then later revoked, the foreign national employee’s L-1 status because it found that the employer did not have a subsidiary or affiliate in Canada. The Service contended that without an established foreign branch, there was no place for the alien to return to, and his L-1 employment could not be deemed temporary. The Board rejected this argument, concluding in its Interim Decision that the L-1 employee could be sent back to Canada, or to the company’s affiliate in Belgium. The Board’s decision indicates that the L-1 remained valid so long as the company had a qualifying entity abroad, even if it was not the foreign entity where the L-1 employee gained his qualifying experience. This conclusion may also be drawn from USCIS L-1 training materials, which were uncovered in response to a FOIA request, and can be found on AILA InfoNet at AILA Doc. No. 13042663 (posted April 26, 2013).

Matter of F-M-Co confirms that the analysis changes if the L-1 beneficiary is sponsored by the U.S. entity for lawful permanent residency under the employment-based first preference for multinational executives or managers pursuant to INA § 203(b)(C) under the employment-based first preference (EB-1C), and the foreign entity where the beneficiary worked no longer exists as a result of a reorganization. There is no parallel regulatory provision to 8 CFR § 214.2(l)(1)(ii)(G)(2); the analogous provision at 8 C.F.R. § 204.5(j)(3)(i)(C) provides the “prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas.” (Emphasis added.) If the foreign entity that employed the beneficiary no longer exists, it must at least exist as a successor to the prior entity under the Neufeld Memorandum of 2009, which adopted a commonsensical definition of successor over a strict reading that had previously been followed – where a valid successor relationship could only be established through the assumption of all of a predecessor entity’s rights, duties and obligations. The Neufeld Memorandum turned to Black’s Law Dictionary for definitions of “successor” and “successor-in-interest”. The 2009 edition of Black’s Law Dictionary defined a “successor” as “a corporation that, through amalgamation, consolidation or other assumption of interests is vested with the rights and duties of an earlier corporation,” and a “successor-in-interest” as “one who follows another in the ownership or control of property” and “retains the same rights as the original owner, with no change in substance.” By ruling that the qualifying entity abroad is not required to exist in the exact same legal form, and that a successor entity may be considered to be the same entity that employed the beneficiary abroad, the AAO acknowledged the reality that large organizations may undergo reorganization, and as a result, associate entities may be merged, consolidated, or dissolved.

Nevertheless, the AAO’s adopted decision in Matter of F-M- Co will unfortunately lead to differing and absurd results for a nonimmigrant L-1 extension and for a petition for permanent residency. When a beneficiary applies for extension of L-1 status after the foreign entity that employed him/her ceases to exist, the extension may be approved based on the existence of another qualifying foreign entity abroad. However, when the beneficiary is then sponsored for permanent residency, there must be a valid current relationship between the U.S. Petitioner and the foreign entity or foreign successor entity, as broadly defined in the Neufeld Memorandum, in order for the immigrant visa to be approved. If, though a merger or transfer, the foreign entity no longer meets the definition of parent, affiliate, or subsidiary, and further does not meet the definition of a successor, the petition for permanent residency will not be approved.

Cyrus Mehta

The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification

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By Cyrus D. Mehta and Sophia Genovese

As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

In Matter of B-C-, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3. According to the DOL’s Prevailing Wage Policy Guidance, referenced in the Matter of B-C- decision, Level I (entry) wage rates

…are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009).

The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition. The Director, instead, should have compared the proffered job duties to those associated with the appropriate Occupational Information Network (O*NET) occupation.  On appeal, Petitioner asserted that an EIT is entry level by its very definition. The AAO acknowledged that by its plain terms, an EIT appeared to be entry-level, but a hasty review would be insufficient. In order to determine whether Petitioner properly selected a Level I wage, the AAO analyzed whether Petitioner selected the most relevant standard occupational classification (SOC) code, and then compared the experience, education, special skills required, and any other requirements provided in the petition and O*Net classification. Here, the description and tasks in O*NET for civil engineer generally coincided with the proffered job duties, concluding that the Petitioner selected the appropriate SOC code.  Next, the AAO analyzed whether the proffered position required experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation. Here, the AAO found that the proffered position did not require more education, experience, special skills or supervisory duties beyond what was listed on O*Net, and, thus, was properly classified as a Level I wage.  The appeal was sustained.

In Matter of G-J-S-USA, Inc., the Petitioner sought to temporarily employ the Beneficiary as an investment banking analyst under the H-1B classification. Matter of G-J-S-USA, Inc.  The Director denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition where (s)he believed that the designated Level I wage was incorrect.  On appeal, the Petitioner asserted that an incorrect methodology was used. Id. Although the AAO found that USCIS erred in its methodology by comparing the job duties of the proffered position to the definition of a Level I wage given in the DOL’s guidance, the AAO ultimately held that the Level I wage assignment was indeed improper.

The AAO explained that the Director should have applied the five-step process outlined in the DOL’s prevailing wage guidance which required comparing the experience, education, special skills, and supervisory duties described in the O*NET description to those required by the employer for the proffered position. After employing the proper analysis, the AAO found that the assignment of a Level I wage was improper, and that the petition was thus not approvable. The Petitioner had specifically failed on step three, which involved a comparison of the education requirements. The Petitioner’s stated minimum education requirement was a master’s degree in finance or a related field. Appendix D of the DOL guidance, however, indicates that the usual education level for a financial analyst was a bachelor’s degree. According to the AAO, the master’s degree requirement warranted a one level increase in the wage and the appeal was dismissed. Id.

Critically, the AAO highlighted in both cases that there is no inherent inconsistency between an entry-level position and a specialty occupation. Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. On the other hand, according to the AAO, the key issue is whether the LCA corresponds to the H-1B petition. If the wage on the LCA does not correspond to duties and requirements described in the H-1B petition, then the H-1B petition can be denied.

It is indeed salutary that the AAO confirms that H-1B eligibility cannot be denied solely on the ground that a proffered position is classified as a Level I wage. There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. Still, the AAO substituting its purported expertise for the DOL’s expertise in determining wage levels on the LCA is of great concern. The AAO stated, “When assessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL’s responsibility with respect to wage determinations.” But the AAO did precisely just that in Matter of G-S-J-USA, Inc. by usurping what DOL knows how to do best, which is making a wage determination.

The AAO relied on Appendix D in the prevailing wage guidance that provides a list of professional occupations with their corresponding usual education. If an occupation requires only a bachelor’s degree in Appendix D, and the employer requires a Master’s degree, which was the case in Matter of G-S-J-USA, Inc., then according to the DOL guidance, the employer is required to increase the wage level by one notch even if there is no experience requirement. It is not clear from the AAO decision whether it selected the appropriate occupation under Appendix D, which again is in the realm of DOL’s expertise. Even assuming the AAO arrived at the correct comparable occupation under Appendix D and the employer did not bump up the wage level, this ought to be considered as an LCA violation, which the DOL to deal with in the event of an LCA audit, and should not undermine the employer’s ability to employer the worker in a specialty occupation, resulting in USCIS outright denying the H-1B petition.

The two new AAO decisions teach that it may be a best practice for an employer to request and obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center prior to filing an LCA. As a practical matter, though, obtaining such a prevailing wage determination can take several weeks, and employers must timely file H-1B petitions within the first five business days of April each year to be considered under the H-1B lottery, or in the case of an extension, before the current H-1B status expires, or before the H-1B worker wishes to port to a new employer. In the event the employer disagrees with the NPWC determination, an appeal to the Board of Alien Labor Certification can take several months.  It is thus important to check Appendix D before the employer decides to require a Master’s degree and still pay a Level 1 wage.  On occasion, a position may require, at a minimum, an advanced degree. For example, a law degree is required for minimum entry into legal profession. However, an employer seeking to employ a new graduate would still be allowed to pay an entry level wage to the prospective employee under the DOL guidance. For lawyers, the DOL acknowledges that prospective employees need a professional degree prior to entering the profession, and thus a Level I wage is appropriate for an entry-level attorney position. Similarly, Market Research Analysts, Economists, and Urban Planners, among others, typically require a Master’s degree, for entry into the field. Attention should also be paid to other factors that may cause a bump up in the wage level, such as special skills or language requirements that may not be consistent with the skills listed in O*Net for a specific occupation. Thus, if the employer requires a foreign language skill, it may or may not need to bump up the wage level depending on whether a foreign language is inherently required for the job but which does not increase the complexity or seniority of the position. All this further confirms the point we make that assessing whether there is an excessive educational requirement or a skill lies within DOL’s rather than USCIS’s expertise.

Still, until the AAO changes its position, employers must carefully review the DOL Wage Guidance and Appendix D when assigning a wage on the LCA in the brave new world of H-1B adjudications in order to stave off a needless denial!

(The authors acknowledge the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

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The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3).  A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now  recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017.  We previously advocated for this outcome here, here and here, and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. Some I-485 applications have been pending for more than a decade, such as those in the class of July 2007, after the employment second (EB-2) and third preferences (EB-3) for India became current and then retrogressed. Even in the Trump era, I-485 applications  filed are likely to remain pending for over 180 days as the beneficiary will be scheduled for personal interviews at the local USCIS office.   This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer. INA 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice of the USCIS’s intent to revoke?

Matter of V-S-G-Inc. recognizes that a beneficiary who has ported is within the statute’s zone of interests following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects.    Courts have agreed that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS.  The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-485 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

The AAO in Matter of V-S-G- while endorsing the holdings in Mantena v. Johnson and Kurupati v. USCIS, disagreed with the Seventh Circuit’s holding in in Musunuru v. Lynch. In Musunuru, while recognizing the beneficiary of an approved I-140 petition as an affected party,   adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

In a prior blog, I had argued against the holding in Musumuru that there is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

I am glad that the AAO in Matter of V-S-G- agrees with this position. The AAO correctly noted, “The new employer did not pay for the filing, is not responsible for maintaining the petition, is not liable for the original petitioner’s compliance or malfeasance associated with it, and cannot withdraw the petition if it no longer requires the beneficiary’s services. Nor can the new employer prevent the beneficiary from porting to yet another employer (as happened here).” The fact that the new employer has to sign an I-485J Supplement J does not give it more interests in the original employer’s petition. The new employer would in any event need to provide a letter confirming the new job offer. Form I-485J merely captures the same information that the new employer would provide in a letter relating to the job offer.

While the outcome in Matter of V-S-G- is positive for beneficiaries who have ported and who are entitled to notification, it did not go far enough. Matter of V-S-G- only recognized the beneficiary as an affected party in cases where he or she has exercised portability under INA 204(j). The AAO disagreed with the Sixth Circuit’s holding in Patel v. USCIS, which held that the beneficiary of an I-140 petition even outside the porting context had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b), according to the Sixth Circuit in Patel, makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. While a pending I-485 may bolster the beneficiary’s interest in an I-140, it is not necessary. There exist old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, an even older 1984 case, Gladysz v. Donovan,  provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The final Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Workers rule (“High Skilled Worker Rule”), which took effect on January 17, 2017, did not address notice and standing for I-140 beneficiaries under INA 204(j). Matter of V-S-G- now fills this gap. 8 CFR 205.1(b) and 205.2(b) and (c), which provide that automatic and notice-based revocations go solely to the petitioner, are no longer applicable when beneficiaries have pending I-485 applications under INA 204(j). The USCIS has instructed that revocation notices be sent to both the petitioner and beneficiary. The USCIS, however, does caution that when sending notification, certain non-public information cannot be shared with both parties such as the petitioner’s non-public financial information, including federal tax returns or information about I-140s being filed on behalf of multiple beneficiaries. Under these circumstances, the beneficiary is supposed to get more generalized information. Whether this will be advantageous to the beneficiary who is provided modified information for purposes of rebutting an intention to revoke an I-140 petition remains to be seen. However, it would be a ground for appeal to the beneficiary whose I-140 was denied because he or she did not get sufficient information in order to provide an effective rebuttal. Still, the examples given in the Policy Memorandum under which the USCIS can revoke an approved I-140 are broad and under the following headings: material error in approving the petition; fraud or willful misrepresentation of material fact; lack of a bona fide job offer; adverse new information (from a site visit or adjustment interview; and invalidation of a labor certification. One can see this as an invitation for USCIS examiners to issue more NOIRs of approved I-140 petitions especially under the Trump administration, which has sought to curb or slow down legal immigration by imposing mandatory adjustment interviews and increasing site visits.

Matter of V-S-G and the accompanying policy guidance only deal with notification to beneficiaries who have approved I-140 petitions, which the USCIS seeks to revoke. It does not deal with beneficiaries who are porting off unadjudicated I-140 petitions and concurrently filed pending I-485 applications. 8 CFR 245.25 of the High Skilled Worker Rule clarifies and codifies long standing policies regarding how a beneficiary may port under INA 204(j). With respect to porting off an unadjudicated I-140 petition, 8 CFR 245.25(a)(2)(ii)(B) clearly provides for this by stating that the I-140 must still ultimately be approved by demonstrating that it was approvable at the time of filing and until the I-485 was pending for 180 days. The rule insists that it must still be demonstrated that the original petitioner had the ability to pay the proffered wage at the time of filing the I-140 petition, but the original petitioner need not continue to show its ability to pay after filing and until the beneficiary obtains permanent residency. This makes sense since once the beneficiary has ported, the original petitioning employer should not be required to demonstrate its continued ability to pay the proffered wage after the filing of the I-140 petition and once the 180 days since the filing of the I-485 have passed.

Unfortunately, Matter of V-S-G- and the accompanying guidance fail to instruct USCIS on how to notify beneficiaries when the I-140 has not yet been approved, but the beneficiary has exercised portability under INA 204(j). Pursuant to Matter of V-S-G, the beneficiary has a legitimate interest in an unadjudicated I-140 too, and must be notified through a Request for Evidence (RFE) that is usually only sent to the employer.  Accordingly, beneficiaries who have ported off an unadjudicated I-140 must insist on being notified regarding any RFE that may be sent to the employer and to be given the opportunity to respond to the RFE. If the relationship has not become antagonistic, the original employer may still respond to the RFE, even if the employer does not intend to employ the beneficiary upon acquiring permanent residency, and notify the USCIS that the beneficiary has or may be porting under 204(j) but is seeing to have the I-140 approved pursuant to 8 CFR 245.25(a)(2)(ii)(B). If the original employer has decided to not respond to the RFE, the USCIS must still give the beneficiary an opportunity to respond to the RFE in the same was as it has been instructed to do under Matter of  V-S-G- with regards to an NOIR of an approved I-140 petition.

Beneficiaries have not been provided the same rights as employers in the I-140 petitioning process. Matter of V-S-G- following court decisions now recognize that an AC 21 beneficiary must be given an opportunity to be heard when the approved I-140 petition is in jeopardy. At the same time, the guidance accompanying Matter of V-S-G- could also incentivize USCIS officers to issue more NOIRs of approved I-140 petitions, although such notices would have to be provided to the original petitioner and to the beneficiary. While this is a significant first step, beneficiaries of employer-filed petitions must continue to advance their legitimate right to be heard even in other contexts, such as when the I-140 is still not yet approved or even when there is no pending I-485 application under INA 204(j).

 

Cyrus Mehta

Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer

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RFE is the acronym for Request for Evidence. It is dreaded by immigration lawyers who file H-1B visa petitions and other applications for immigration benefits. The RFE is essentially a challenge by the immigration agency, United States Citizenship and Immigration Services (USCIS), asserting that the applicant does not appear to be qualified for the visa classification, and therefore requests additional information to adjudicate. The time given to respond to an RFE is generally 87 days. The RFE can consist of several pages of objections. Upon receiving it, the immigration lawyer must meticulously strategize a response in conjunction with the client. Responding to the RFE can take several hours, and at times days on end. It requires coordinating with others for an expert evaluation, as well as for corroborative letters from other employers and trade organizations. Although responding to an RFE is part of a routine administrative process, it feels like one is writing a brief to an appellate court. There is a lot of tension for both the lawyer and the client. If the response to the RFE cannot be overcome in the eyes of a faceless bureaucrat in a remote immigration service center, the petition is denied. The consequences can be drastic. The foreign national beneficiary falls out of status, and may have to leave the United States with family in tow. If the case was filed under the H-1B cap, filing a new one will not be possible until the employer waits for H-1B cap filing period next year, and then too there is no assurance that the H-1B will get selected under next year’s lottery.

It is not a surprise, therefore, that when the Administration does not favor a particular visa, the RFE rate increases. A case in point is the H-1B visa that has become the favorite whipping boy over several administrations. An article in Reuters by Yeganeh Torbati entitled “Trump administration red tape tangles up visas for skilled foreigners, data shows,” where I have been quoted, brilliantly shines the torch on the dreaded RFE and how it is used to distort a visa program even though this was not the intention of Congress. This article has made the RFE a household name. What the government cannot change through Congress or by amending the rules through notice and comment, it does through the RFE. If it wishes to bring about a new policy, such as insisting on the employer demonstrating an employer-employee relationship, or as seen more recently under the Trump administration, insisting on higher wages under the H-1B visa, it does so through the RFE. Even if there be no legal basis for insisting that only one who is paid more than an entry level wage can qualify for the H-1B visa, the administration tries to bring about this change through the RFE. To get a better understanding of the recent RFE trend based on entry level wages, read my prior blog H-1B Entry Level Wage Blues.

The following extract from the Reuters article is worth reproducing:

The Trump administration is making it more difficult for skilled foreigners to work in the United States, challenging visa applications more often than at nearly any point in the Obama era, according to data reviewed by Reuters.

The more intense scrutiny of the applications for H-1B visas comes after President Donald Trump called for changes to the visa program so that it benefits the highest-paid workers, though he has not enacted any such reforms.

Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.

The challenges, which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported.

The trend is likely to cheer supporters of Trump’s hardline stance on immigration. They say visas for skilled foreigners undercut American workers by replacing them with low-paid employees shipped in from abroad. But major tech companies, universities and hospitals contend the visas allow them to fill highly specialized jobs for which there are sometimes few qualified Americans.

H-1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Microsoft (MSFT.O), Amazon (AMZN.O), Google (GOOGL.O), Apple (AAPL.O), Intel (INTC.O), Oracle (ORCL.N) and Facebook (FB.O) were heavy users of H-1B visas in 2016, according to USCIS data.

The USCIS inquiries typically challenge the basis of the original petitions and assert that the employers do not qualify for the visas. Employers and their lawyers must then provide further evidence to prove their need and eligibility for the visas.

To be sure, the Obama administration also issued a large number of H-1B challenges – nearly 59,000 – from January through August 2016, and a similar number in 2015.

Immigration attorneys have for years complained about redundant and burdensome challenges to high-skilled employment visas. But they say they are seeing a new trend in the Trump era.

In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

“One way to have an immigration policy that’s consistent with the policy that’s been articulated by the Trump administration is to put more scrutiny on H-1B cases,” said Cyrus Mehta, a New York-based immigration attorney.

 You can continue to read the entire article here.

It is no accident that the issuance of 85,000 RFEs between January 1 and August 31, 2017 on H-1B visa petitions, coincided with Trump’s America First policy that got crystalized in the Buy American Hire American Executive Order. While not official, it is widely believed that the goal of the Trump administration is to curb legal immigration. Since it is difficult to meet this objective through Congress, the Administration has resorted to the issuance of RFEs on the spurious and legally unsustainable ground that a person who is offered a Level 1 wage cannot be classified for an H-1B visa. A spate of RFEs were also issued during the Obama administration on H-1B visas, after the issuance of the Neufeld Memo on January 8, 2010, which set forth the standards for determining an employer-employee relationship under 8 CFR 214.2(h)(4)(ii). However, those RFEs were issued against IT consulting firms whose business models were to place H-1B workers at third party client sites. The RFEs being issued under the Trump administration seem to curb the entire H-1B visa program.

The current trend in RFEs on H-1B visas do not just challenge the Level 1 wage, but also whether the position qualifies as a specialty occupation. The RFE also questions the beneficiary’s maintenance of F-1 status under Curricular Practical Training challenging whether the CPT constituted an integral part of the program. At times, evidence is also requested to establish that the company is doing business as stated in the H-1B petition. Many RFEs also challenge the employer-employee relationship under the Neufeld Memo. Even if the H-1B worker is not working at a client site, the RFE still asks for proof that there is sufficient work to employ the H-1B worker in the specialty occupation at the employer’s place of business. Although there has been a general upswing in the issuance of RFEs, H-1Bs appear to be getting hit the hardest.

When such an RFE is received, one should take a deep breath and respond appropriately. Imagine yourself feeding the beast in order to tame it or make it go away. If you feed the beast well, it will go away satisfied. If you do not feed it well, it will still be hungry and will come back for more. Respond to every issue raised in the RFE even if you believe that you submitted the evidence previously. If there is a silly request, still respond. For example, RFEs often ask for a weekly percentage breakdown of the duties listed in the job description. This is a rather flawed and ridiculous request, as it is rare that modern employers keep tabs of such breakdowns. Most people occupying professional positions tend to multitask, and are expected to be creative and motivated, thus going beyond what is expected of them in the official job description. You may wish to preface the response by stating that such a request has no bearing to the reality of the job, although a good faith attempt has still been made to approximately breakdown the duties into percentages. Be forewarned that if you feed the beast offal, it will not be satisfied. You need to feed it the choicest bits of meat. For example, the RFE at times erroneously asks that all of the four regulatory prongs to show that the position qualifies as a specialty occupation be satisfied, when only one needs to be satisfied:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

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;

The employer normally requires a degree or its equivalent for the position; or

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.

See 8 CFR §214.2(h)(4)(iii)(A).

Thus, petitioners and their attorneys should strategically decide whether to address all four prongs or only one or more of the four prongs. At times, responding to prong 4, when there is also a challenge to the Level 1 wage, could backfire. If you demonstrate that the position is so specialized and unique, then the USCIS can hit back asserting that if the job was “so specialized and complex,” then the position could not have commanded an entry level 1 wage. On the other hand, a petitioner may have no choice but to rely on prong 4 if it is not acknowledged in the Occupational Outlook Handbook that employers always require a bachelor’s degree in the specialty occupation. For example, the OOH with respect to Computer Programmers states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.” It may be risky to rely on the first prong for the position of computer programmer since the OOH acknowledges that some are hired with an associate degree.

Even if the employer normally hires computer programmers with bachelor’s degrees under prong 3, the employer’s requirements in isolation cannot be given deference if a bachelor’s degree is not normally required by all employers, according to the holding in a Fifth Circuit Court of Appeals decision in Defensor v. Meissner, which the USCIS loves to cite in the RFE.

When relying on prong 4, it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex.  It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such testimony if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

In this author’s experience, most RFEs can be overcome and the H-1B visa petition is approved. It is difficult to predict whether this trend will continue under the Trump Administration’s Buy American Hire American Executive Order. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

If the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office, and it is also possible that the USCIS can reconsider the denial before it is sent to the AAO. If the AAO denies, the denial can also be challenged in federal court. In fact, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. It is quite likely that if there is a pattern and practice of denials on the Level 1 wage issue, there will be challenges in federal court that will review the case with a different lens from the USCIS or AAO.

There was a time when it was thought that RFEs issued under the Neufeld Memo were insurmountable. Soon, upon meticulously addressing those RFEs, employers and their lawyers were able to overcome the objections and get an H-1B approval by establishing the employer-employee relationship. Likewise, there are even stronger arguments to demonstrate that the mere offering of a level 1 wage does not disqualify a foreign national form H-1B classification, which should hopefully overcome the recent spate of RFEs.

Cyrus Mehta

H-1B Entry Level Wage Blues

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Those who filed under the FY 2018 H-1B visa lottery and were selected must have been pleased. As premium processing was eliminated, the approvals have just started coming in this summer. Cases that are not readily approved receive Requests for Evidence (RFE). Many of the RFEs object to the H-1B worker being paid an entry level wage.

The RFE attempts to trap the employer. It challenges whether the Labor Condition Application, if it indicates a Level 1 wage, appropriately supports the H-1B petition. According to the DOL’s prevailing wage policy guidance,  a Level 1 (entry) wage is assigned to positions that require a basic understanding of the occupation, and such an employee performs routine tasks that require limited, if any, exercise of judgment. Such an employee also works under close supervision and receive specific instructions on required tasks and results expected.

The RFE – which meticulously parrots the Level 1 duties from the DOL’s wage guidance – then asserts that the position described in the H-1B petition appears to be more complex than a position that is assigned a Level 1 wage. Therefore, the RFE asserts that the employer has not sufficiently established that the H-1B is supported by a certified LCA that corresponds to the petition.

Employers who receive such an RFE should not panic. Just because the position is assigned an entry level wage does not necessarily mean that the position cannot qualify as an H-1B specialty occupation. Moreover, even an occupation assigned with an entry level wage can be complex and thus require a bachelor’s degree in a specialized field. The DOL’s worksheet within its wage guidance indicates that if the occupation requires a bachelor’s degree and up to two years of experience, it will be assigned a Level 1 wage to a corresponding Job Zone 4 occupation. In the event that the job requires skills, would that bump up the wage to Level 2?  Unless the job requires skills that are not encompassed in the O*NET tasks, work activities, knowledge, and Job Zone examples for the selected occupation, the position can still remain in Level 1, according to the DOL’s wage guidance.

Hence, the corresponding tasks of an occupation requiring a bachelor’s degree and up to two years of experience can still be complex, even if the wage remains at Level 1 and the position requires supervision. For example, it would be difficult for the USCIS to argue that an entry level doctor, lawyer or architect cannot qualify for H-1B visa classification. These occupations need underlying degrees in the specialty as a minimum for entry into the profession. Even if the lawyer is closely supervised, he or she still needs to perform complex tasks relating to the underlying Juris Doctor degree. The same logic ought to apply to other occupations that are readily classifiable under the H-1B visa such as engineers or computer systems analysts. The job duties at any wage level correspond to the knowledge that is acquired through a specialized degree such as a degree in engineering or computer science.

Indeed, the wage level assigned to the occupation ought not determine whether it is eligible for H-1B visa classification or not. If the position does not require a minimum of a bachelor’s degree for entry into the occupation, such as a plumber or welder, then even a Level 4 wage assignment would not be able to salvage this occupation for purposes of H-1B classification.

In  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questioned whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.  While this policy memorandum only applied to entry level computer programmers, practitioners are now seeing that any occupation that is assigned a Level 1 wage, even if it is not related to computer programmer, gets an RFE. It may be worth noting that even an entry level computer occupation should be eligible for H-1B classification if it can be demonstrated that the skills necessary to perform the duties require the minimum of a bachelor’s degree.

President Trump’s Executive Order on Buy American Hire American may also be responsible for this trend, which provides in relevant part:

In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries

Even if the administration has not been able to promulgate new regulations to achieve its stated goals under the executive order, these RFEs are indirectly implementing President Trump’s “Buy American Hire American” policy by thwarting H-1B petitions filed for entry level positions. While H-1B petitions with Level 1 wages have run into trouble prior to the Trump administration, RFEs are now being issued more frequently whenever a Level 1 wage has been noticed. Immigration attorneys must fight back on behalf of their clients. Otherwise, the government could potentially exclude entry-level professionals from using the H-1B visa, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. Paying such an entry wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision. Another argument that can be made is that if an employer is forced to pay a legitimate entry level worker on an H-1B visa at a wage level higher than the entry level wage, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer is forced to pay a higher wage to an H-1B worker at the entry level, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is as a result of reading out H-1B visas from the INA for entry level workers in acknowledged professions, it could also have the effect of artificially distorting wages that could ultimately hurt competitiveness. If the wage paid is well above the minimum wage  in Level 1, but slightly under Level 2, and at times there is at least a $20,000 or $30,000 difference between Level 1 and Level 2, then that too can be used to argue that the higher wage being paid is commensurate to the more complex duties in the H-1B petition, despite the RFE asserting that the duties are basic, even if this higher wage is still within Level 1.

There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. All that is required is for the petitioning employer to demonstrate that the proffered position requires the “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.”  INA §214(i)(l).  The regulations further define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

  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.  See 8 CFR §214.2(h)(4)(iii)(A).

All of the criteria in 8 CFR §214.2(h)(4)(iii)(A) suggest that the bachelor’s degree is the minimum requirement for entry into the occupation or for purposes of performing the duties of the position. However, if one is relying on prong 4 to establish H-1B eligibility because it is unusually complex or specialized, the AAO in an unpublished decision has noted that this would create an issue of credibility if the LCA only identifies a Level 1 wage. Therefore, practitioners should be prepared to either assert that the duties can be specialized and complex even if a Level 1 wage is being paid, or alternatively, argue under prongs 1, the first part of prong 2 or prong 3. In a different decision, the AAO recognized that a Level 1 wage in certain occupations, such as doctors or lawyers, would not preclude a finding that they qualified as specialty occupations. Of course, if the position required more than 2 years of experience, then it will be harder for the employer to argue, if not impossible, that an entry level wage was justified. On the other hand, if the beneficiary was demonstrating possession of a degree through work experience, it should be carefully explained that this experience is not part of the job requirement, but is being used by the beneficiary to obtain the equivalent of a specialized degree through training or work experience.

Lawyers must use every argument in their legal arsenal to overcome RFEs intending to deny H-1B petitions that contain a Level 1 wage, and if there is a denial, to seek either administrative or judicial review. The law did not intend to impose a Catch-22 on employers who legitimately hire H-1B workers for entry level positions. If the employer argues that the duties are routine and comport to the Level 1 wage definition then the USCIS will play “gotcha” by asserting that the occupation does not qualify for H-1B classification. If, on the other hand, the employer argues that the duties are complex and specialized, then the USCIS will likely continue to delight in playing “gotcha” by asserting that the LCA does not correspond to the H-1B petition. There is a way to avoid this trap.  An employer can demonstrate that routine entry level duties that still need to rely on skills acquired from a specialized bachelor’s degree program would qualify the occupation for H-1B classification. Alternatively, an employer may also be able to demonstrate that certain duties can be complex and specialized in occupations even at an entry level.  The employer must choose the best argument based on the specific occupation being challenged and facts of the case.

There was a time when obtaining an H-1B visa was considered routine and easy. Not so any longer.

Cyrus Mehta

Matter of Z-A-, Inc.: Recognizing The Global Role Of The L-1A Manager In A Globalized World

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Despite the shrill rejection of globalization in the current presidential election cycle, the Appeals Administrative Office (AAO) has thankfully bucked the trend. It recently designated Matter of Z-A- Inc. as an “Adopted Decision, “which means that such a decision “establishes policy guidance that applies to and binds all USCIS employees. USCIS directs its personnel to follow the reasoning in these decisions in similar cases.”

Under Matter of Z-A-, Inc., designated as an Adopted Decision since April 14, 2016, an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization. A USCIS officer can no longer deny L-1A classification to such a manager because he or she is not supported by personnel within the United States.  This decision recognizes that we operate in a global world, and that an organization may rely on its resources outside the United States to produce products or provide services.

The foreign national manager seeking an L-1A visa extension in Matter of Z-A-, Inc. was the President and Chief Operating Officer of the US petitioning entity whose parent company was in Japan. His duties included: directing and managing the Petitioner’s financial, legal, trade, administrative, and sales activities; establishing financial and budgetary plans and goals; reviewing and monitoring sales activities performed by the Petitioner’s sales manager; liaising with the parent company; and interacting with customers and outside service providers. The Petitioner in the US only employed a sales manager and an administrative specialist. However, eight staff members within the parent company’s headquarters in Japan also exclusively supported the work of this manager.

The key issue is whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA 101(a)(44)(A). The Petitioner asserted that this manager would manage an essential function of the organization, which is permitted under the statute, as opposed to managing other personnel. A functional manager under the L-1A visa classification must primarily manager as opposed to perform the essential function, and must also be senior in the organizational hierarchy. An employee who primarily performs the tasks necessary to produce a product or a service is not considered to be employed in primarily a managerial or executive capacity. See Brazil Quality Stones, Inc. v. Chertoff,  531 F.3d 1063 (9th Cir. 2008).

The L-1A visa classification does not require the organization to employ hundreds of people. Rather, the USCIS is required to take into account the reasonable needs of the organization as a whole, including any related entities within the organization, giving consideration to the organization’s overall purpose and stage of development. See INA 101(a)(44)(C). The AAO found that since Congress created the L-1A classification to “eliminate problems…..faced by American companies having offices abroad in transferring key personnel freely within the organization,” it was reasonable for a petitioner to assert that its organizational needs include those of its related foreign components.

In the instant case, the request to extend L-1A status was denied by USCIS Service Center Director on the ground that only a small number of employees worked in the United States, who would support the manager and relieve him from performing the duties of the function. It did not address the Petitioner’s substantial evidence relating to the staff that was located at the parent entity in Japan who also supported the manager in primarily managing the essential function of the organization. The AAO reversed the Service Center’s decision on this ground by noting:

“Here the record shows that the Beneficiary, in his role as Vice President, will continue to rely on the support of the eight staff members in Japan and two employees in the United States to accomplish non-managerial duties, and that the purpose of his transfer is to oversee the short-term and long-term expansion of the Petitioner’s presence in what is a new market. Given the overall purpose of the organization and the organization’s stage of development, the Petitioner has established a reasonable need for a senior-level employee to manage the essential function of developing its brands and presence in the United States, notwithstanding that the Petitioner employs directly only two other employees in the United States.

While the Beneficiary may be required to perform some operational or administrative tasks from time to time, the Petitioner has established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.”

In a globalized world, where people are easily connected to each other by the internet, it is no longer necessary for a manager to rely on personnel in one location, namely in the United States. It is now common for teams of personnel within one organization to easily collaborate across different countries to produce a product or provide a service using cloud technology and even able to video conference on one’s smart phone through Skype or FaceTime.  The fact that the world is flat, as famously coined by Tom Friedman, is no longer a novelty but a given in a world that has become even more hyper connected since.  Despite unrealistic calls by politicians to have operations exclusively in America, the reality is that US businesses can thrive, compete, prosper, create new jobs and benefit the American consumer through international operations, made that much easier with rapidly evolving internet technology.

Until the AAO designated Matter of Z-A- , Inc. as an Adopted Decision, it was quite common to receive an objection from the USCIS that the persons supporting the L-1A manager were not in the United States, and would therefore not count in evaluating whether this individual would be performing in primarily a managerial capacity. This sort of reasoning was not consistent with the way businesses operate today, and  put the United States at a distinct competitive disadvantage if its corporations could not quickly bring in key personnel, who in turn would be supported by resources in foreign countries. Even if it was logical and commonsensical for a manager to qualify for an L-1A on this obvious basis, some USCIS officers obstructively still denied the L-1A petition. After Matter of Z-A- Inc.’s elevation to an Adopted Decision, it now firmly binds all employees of the USCIS even if their worldview may be colored by the clarion calls of politicians who reject globalization.  In the event that a USCIS employee still goes rogue and denies the L-1A petition on such a baseless ground, it certainly provides strong grounds for an appeal.

Cyrus Mehta

AAO FIRMLY TETHERS H-1B WORKERS TO AN LCA LIKE A DOG IS TO A LEASH

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In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision and revoked the petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The AAO found that the petitioner should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so. The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H−1B status

In affirming the Director’s decision, the AAO noted:

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (LCA) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

In the not too distant past, 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. Even prior to the guidance being formally superseded, employers were filing amended H-1B petitions as consular officers were recommending to the USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. 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.

It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but the USICS requires an onerous demonstration that the petitioning company will still have a right to control the H-1B worker’s employment. Each time the employer files an amendment, the USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a humongous Request for Evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H-1B approval initially on virtually the same facts.

H-1B workers in other industries such as healthcare also get re-assigned to different locations, such as physicians, nurses and physical therapists. They too will be over burdened by the need to file amended H-1B petitions each time they move to a new work location. One may also have to await the approval of the amendment before the H-1B worker can move to the new job location. The portability provision at INA 214(n) seems to apply only when an H-1B worker is accepting “new employment” by a “prospective employer of a new petition.”

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.

20 CFR 655.17 defines “area of intended employment”:

Area of intended employmentmeans the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).

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.

The  DOL Wage and Hour Division Fact Sheet # 62J at http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62j.htmalso confirms this:

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

The AAO decision in Simeio Solutions further over regulates the H-1B visa, which is already subject to the most hyper-technical scrutiny. This in turn will deprive American companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices and scale that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the US through their skilled personnel

The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved between client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify US workers. However, they were not required to file onerous H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog is to his leash, although the latter may still be occasionally let loose to enjoy more freedom than an H-1B!

Cora-Ann Pestaina

The AAO on H-1B Visa Credential Evaluations and the ‘Three-For-One” Rule

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As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee – has the required qualifications. It’s become common knowledge that progressively responsible work experience may substitute for any deficiency in the foreign national’s education and everyone is pretty comfortable with the equivalency ratio of three years of work to one year of college training (the “three-for-one” rule). Under this rule, a foreign national with twelve years of work experience could be deemed to possess the equivalent of a four-year US baccalaureate degree and therefore qualified to hold a specialty occupation.Going forward on new H-1B petitions and especially as we gear up for the upcoming H-1B cap season, a recent non-precedent decision by the Administrative Appeals Office (AAO) discussing USCIS’ recognition of any years of college-credit for a foreign national’s training and/or work experience is worthy of some careful review as it provides detailed analyses that can help us ward off nasty Requests for Evidence (RFE) from the USCIS upon the filing of H-1B petitions.

The case involved an H-1B visa petition filed by a software solutions provider to employ a foreign national in the position of Senior Associate, Solution Architect. The petitioner based its beneficiary-qualification claim upon a combination of the beneficiary’s foreign coursework (a three-year Bachelor of Commerce degree) and the beneficiary’s work experience and training. The USCIS Director denied the H-1B petition and the AAO subsequently dismissed an appeal of the denial, both on the grounds that the petitioner failed to demonstrate that the beneficiary was qualified to perform the duties of the specialty occupation-caliber Software Developer position.In its decision to dismiss the appeal and deny the petition, the AAO cited language at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Immigration and Nationality Act (INA). Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-lB nonimmigrant worker must possess:

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in paragraph (1)(B) for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree,and(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

8 C.F.R. § 214.2(h)(4)(iii)(C), Beneficiary qualifications, provides for beneficiary qualification by satisfying one of four criteria. They require that the evidence of record establish that, at the time of the petition’s filing, the beneficiary was a person either:

(1) Hold(ing] a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold(ing] a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold[ing] an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Hav[ing] [(A)] education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and hav[ing] [(B)] recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The AAO pointed out that the clear, unambiguous language at both 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Act, stipulates that for classification as an H-1B nonimmigrant worker not qualifying by virtue of a license or qualifying degree, a beneficiary must possess TWO requirements – the experience in the specialty equivalent to the completion of such degree; AND recognition of expertise in the specialty through progressively responsible positions relating to the specialty.The petitioner submitted three sets of credentials evaluation documents, each an evaluation of a combination of the beneficiary’s foreign education and his work experience and training. Regarding the documentation of the beneficiary’s work experience, the evaluations relied heavily upon an experience letter which indicated that the beneficiary had been employed full-time “from June 2008 through the present” and that he “currently serves in the position of Sr. Associate, Solution Architect.” The letter provided a list of the beneficiary’s current job duties. The AAO found the experience letter deficient in that it did not establish any progression in the beneficiary’s duties and responsibilities or any progression through increasingly responsible positions that would meet the requirement, at 8 C.F.R. §214.2(h)(4)(iii)(C)(4), to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty in question. In other words, the AAO found that the experience letter did not indicate the position in which the beneficiary had initially been hired and whether the beneficiary still held that same position or whether the beneficiary’s current position represented a promotion or a series of promotions. The AAO found that the letter identified only the beneficiary’s current job duties in “relatively abstract terms of generalized functions” and did not state how long the beneficiary was performing in that current job. Because the letter failed to recount the beneficiary’s prior positions with the employer and the duties and responsibilities of those prior positions, it therefore did not establish that the beneficiary had achieved progressively responsible positions to indicate recognition of expertise in the pertinent specialty, as the provisions at 8 C.F.R. §214.2(h)( 4)(iii)(C)( 4) include as an essential element for establishing a beneficiary’s qualifications through a combination of education, training, and/or experience. The AAO held that the letter provided an insufficient basis for the evaluators to make any conclusions about the nature and level of college-course-equivalent knowledge that the beneficiary gained throughout his employment.

The AAO also took issue with what it described as a “misinterpretation and misapplication of the so-called “three-for-one” rule” which evaluators use to recognize any three years of work experience in a relevant specialized field as equivalent to attainment of one year of college credit in that specialty. The AAO stated that only one segment of the H-lB beneficiary-qualification regulations provides for the application of the three-for-one ratio, and that is the provision at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), which reserves the application exclusively for USCIS agency-determinations and moreover, that portion of the regulations requires substantially more than simply equating any three years of work experience in a specific field to attainment of a year’s worth of college credit in that field or specialty. The AAO pointed out that evaluators seem to have adopted as their standard of measure only the numerical portion of the ratio segment of the regulation at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), that is, “three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks” and neglected to recognize the rest of the test which limits application of the “three-for-one” rule to only when USCIS finds that the evidence about the “the alien’s training and/or work experience” has (1) “clearly demonstrated” that it included the theoretical and practical application of specialized knowledge required by the specialty occupation; (2) “clearly demonstrated” that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; AND (3) “clearly demonstrated” that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

Finding that the beneficiary’s experience letter failed to meet these three criteria, the AAO held that such evidence did not qualify for recognition of any years of college-level credit.

The decision also points out that under 8 C.F.R. §214.2(h)(4)(iii)(D)(3), only a “reliable credentials evaluation service that specializes in evaluating foreign education credentials” can evaluate a foreign national’s education. In the instant case, the AAO therefore dismissed two evaluations prepared by individuals and not by credentials evaluation services as having no probative weight.

The AAO also found fault with one evaluation of the beneficiary’s experience/training since the proof of the evaluator’s own credentials qualifying him to provide the evaluation included an endorsement letter from the Chairman of the Department of Computer Science at the education institution where the evaluator was employed, dated four years prior to the evaluation and a letter from the Registrar which stated that the evaluator had the authority to “recommend college-level credit for training and experience” and did not state that he had the power to “grant” college-level credit or go into any detail as the specific extent of his authority in this regard. The letter from the Registrar was also dated a year prior to the evaluation.

The AAO decision also touched on the fact that two evaluations mentioned that the beneficiary had completed “professional development programs in a variety of computer technology and accounting-related subject[s]” and provided no concrete explanatory information about the substantive nature of those programs and what their completion may have contributed in terms of equivalent U.S. college-level coursework.

With regard to any use of a foreign national’s resume as evidence of his work experience, the AAO decision pointed out that  a resume represents a claim by the beneficiary, rather than evidence to support that claim.

This is one non-precedent decision and the AAO seems to be taking a very hard line in denying a case where the beneficiary provided evidence of his work experience. Immigration practitioners who file H-1B petitions may feel that USCIS has not been taking such an extreme stance in previous petitions. It is up to each practitioner to discuss the issue with the prospective H-1B employer and decide on whether to submit a wealth of documentation with the initial H-1B petition or take the chance that the USCIS could issue an RFE. So what can we take away from this AAO decision?

    • Most importantly, the “three-for-one” rule cannot be taken for granted. It is important that the foreign national obtain extremely detailed experience letters from former employers, which describe each position that the foreign national has held such that the progressively responsible nature of the positions is evident and indicates the foreign national’s level of expertise in the specialty. The description of the foreign national’s duties and responsibilities should make it clear that his work included the theoretical and practical application of specialized knowledge required by the specialty occupation. The letters should also mention the foreign national’s peers, supervisors and subordinates who have degrees in the specialty occupation. The H-1B petitioner must also demonstrate that the foreign national has recognition of expertise in the specialty evidenced by at least one type of a list of five types of documentation described above. This can be accomplished by submitting two expert opinion letters from two college professors along with contemporaneous evidence of their ability to grant college-level credit.
    • Only a foreign credentials evaluation service may evaluate a foreign national’s education. Accordingly, if the foreign national has a combination of education and work experience, the submission to the USCIS cannot contain only expert opinions from professors but must also include an evaluation from a foreign credentials evaluation service.
    • Any evidence of the foreign national’s training must be accompanied by transcripts and a discussion about the nature of the program and what each program is worth in equivalent U.S. college level coursework. Again, if relying on a college professor to do an equivalency, the evaluation must be corroborated with evidence from the college authorities that the professor has the authority to grant credits and must provide further details under what circumstances this professor is authorized to grant those credits.
    • The foreign national’s resume should never be used as documentation of his experience.