Tag Archive for: Denials

Cyrus Mehta

Dealing With Section H.10-B Labor Certification Denials

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate exists. The DOL has promulgated little guidance on this question, so immigration lawyers have been accustomed to completed it in a variety of ways. While some employers may prefer to list related job titles in H.10-B, a candidate’s qualifying experience may have been gained in positions with various nondescriptive job titles. Thus, employers may choose to respond by instead describing the experience such as “2 years of experience in engineering management” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. The DOL has historically accepted PERM applications that respond to question H.10-B in this way, and this approach is consistent with guidance that it has previously issued by the DOL’s Office of Foreign Labor Certification (OFLC), so the wave of recent denials is puzzling.

The uptick in PERM denials concerning question H.10-B seems to have begun between October and December 2022, when the percentage of PERM applications denied by the DOL nearly doubled when compared to data from the first quarter of FY 2022. The denials seem to focus on the idea that question H.10-B is not properly completed unless specific job titles are listed. Because DOL takes the position that this field in the form was not properly completed if an employer uses alternate language, it asserts that the entire PERM application is rendered incomplete. The DOL cites to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

On November 17, 2022, OFLC communicated the following guidance to the American Immigration Lawyers Association (AILA) in response to reports of numerous denials on this issue: “OFLC understands that there may be a variety of relevant specific job titles in which required experience may be gained. Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.” See AILA Doc. 22092601. Interestingly, AILA received reports of continued denials on the question H.10-B issue well into March 2023, even when the PERM application contained language similar or identical to that prescribed by OFLC in November 2022. Id.

Historically, BALCA’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998), has been the prevailing guidance concerning alternative requirements. In Kellogg, BALCA held that employers should indicate that it will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that failure to include the Kellogg language on an ETA 9089 should not be a basis for denial, noting that there is no suitable place on the form to include the language. Nothing in the holdings of Kellogg or its progeny, however, seems to be instructive regarding whether specific job titles must be listed for alternate occupations.

The DOL is aware of inconsistencies in the adjudication of PERM applications, and has communicated to AILA that it will review applications where an employer has filed a Request for Reconsideration (“RFR”) for a denial based on the manner in which question H.10-B was completed. According the AILA, “where the reason for denial is Question H.10-B only, OFLC will pull the case out of the usual order to review and certify the application where appropriate. OFLC has indicated that there are several hundreds of these cases. While OFLC will start reviewing these cases immediately, it may take several weeks to process them all.” See AILA Doc. 22092601. It thus seems that immigration lawyers and their clients who are dealing with an H.10-B denial may be able to get resolution simply by filing an RFR.

The recent denials still pose a number of complications, though. If the PERM was filed in the sixth year in H-1B status, because the DOL is likely to take at least several weeks to process RFRs, some employees may reach the end of their sixth year in H-1B status and be forced to leave the U.S. during this extended waiting period, even if the DOL ultimately certifies the PERM. On the other hand, if the PERM was filed one year or more prior to the end of the sixth year, the PERM that is the subject of an RFR is still considered pending and can provide the basis for a one-year H-1B extension under § 106(a) of the American Competitiveness in the 21st Century Act.   Moreover, immigration lawyers and their clients who process many PERM applications have been left wondering whether other pending PERM applications that use the same language for question H.10-B will be denied. If that is so, then employers should continue to file RFRs each time there is a denial.  If a Prevailing Wage Request or recruitment such as job orders and newspaper ads are already in progress and use general language like “5 years of experience in the biotechnology industry”, it is hoped that DOL will no longer deny such a PERM in light of its announcement that employers may file RFRs. It would be in violation of the Administrative Procedure Act for the DOL to deny pending and future applications without notice and the opportunity to comment on the change.

In general, it is a best practice to ensure that the Prevailing Wage Determination on Form 9141, all recruitment, and the ETA 9089 itself use identical language. While it would easier said than done for the employer to start all over again by requesting a new Prevailing Wage Determination if the language is not consistent with DOL’s latest guidance, obtaining a new 9141 Prevailing Wage Determination could take 12-14 months. If the prevailing wage request is pending and indicates experience rather than titles that have resulted in denials, or if the advertisements are already running with that language, it would be defensible to not change course and list the experience in the same way in H.10-B. Alternatively, the employer may include the “magic” language as suggested by OFLC to AILA in its November 17, 2022 guidance by stating in ETA 9089 H.10-B “any occupation in which the required experience or skills were gained as specified in H.14” . H.14 can list the skills or experience required for the position that was stated in the advertisements or the prevailing wage request. This modification would likely not be inconsistent with the way the job requirements were set forth in the 9141 or the recruitment.

Although it is salutary that the DOL has allowed employers with denied PERMs based on how H10-B was completed to submit RFRs, until this issue is resolved, employers must also find ways to prevent further denials by drafting the language in H.10-B to hew as closely as possible to the DOL guidance provided to AILA while also not veering too far off from the way the requirements have been listed in the prevailing wage determination and ongoing recruitment.

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

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

 

Cyrus Mehta

The Real Reason for L-1B Visa Denial Rates Being Higher for Indian Nationals

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A study issued by the National Foundation For American Policy confirms what we attorneys who work in the trenches have feared most. It was already been assumed that an L-1B case for an Indian national will face much higher scrutiny, and one was always prepared to put in a lot more work into such a case, only to expect that the case could still be denied.  The NFAP report entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals now confirms that Indian nationals face the highest refusal rates in the L-1B visa program.

The L-1B visa allows the transfer of a specialized knowledge employee from an overseas entity to a related US entity. This visa should allow US companies to quickly transfer employees in order to remain globally competitive. Instead, the overall denial rate, according to NFAP report, was 35%. Prior to 2008, the overall denial rate was under 10%

Alarmingly, the denial rate for employees coming from India was 56% in 2014 while the denial rate for employees transferred from all other countries was only 13%. The following table from the NFAP report comparing denial rates is very stark and speaks for itself:

L-B DenialRates by Country: FY 2012-2014
Country of Origin
Total
Denials
Denial Rate
Indian Nationals
25,296
14,104
56%
Canadian Nationals
10,692
424
4%
British Nationals
2,577
410
16%
Chinese Nationals
1,570
347
22%
Japanese Nationals
1,145
171
15%
German Nationals
1,100
161
15%
French Nationals
753
140
19%
Mexican Nationals
740
157
21%

Source: USCIS; National Foundation for American Policy.

Immigration attorneys knew it in their bones that when they file an L-1B petition on behalf of an Indian national, however meritorious, it is likely to result in a Request for Evidence, and potentially a denial. USCIS examiners change the goal posts to the point that it has become frustratingly ridiculous. We now have the NFAP report to thank for confirming our worst fears.

Take the example of a company that legitimately produces a software application for the financial industry. It is a proprietary product of the company, and is branded as such. Over the years, the company has developed a loyal client base for this product. The product is upgraded frequently. An employee of the company who has worked on the development of this product in India needs to be transferred to the US so that she can train sales staff in the United States, and also assist in customization upgrades based on each client’s unique needs. This individual should readily qualify for the intra-company transferee L-1B visa as she has specialized knowledge of the company’s proprietary software product. This is what the L-1B visa was designed for by Congress.  Still, there is still going to be a likelihood of refusal of the L-1B visa for this Indian national employee. Even if the L-1B was previously approved, the renewal or extension request of L-1B status may fail. Indeed, the NFAP report confirms that “U.S. Citizenship and Immigration Services adjudicators are more likely to deny a case for an extension of L-1B status than an initial application.” The report goes on to correctly observe: “This seems counterintuitive, since the individual whose status is being extended typically has already worked in the United States for three years and is simply continuing work.”

A prior blog  describes a common example for denying an otherwise meritorious L-1B visa application of an Indian national:

In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.

 So let’s try to find out why the refusal rate for Indian nationals is higher than others. Some will justify that since there are more L-1B visa applicants from India, the refusal rate will be proportionately higher. True, but this does not explain why the refusal rate for Indians is 56% while the refusal rate of the next highest number of L-1B visa applications, Canadians, is only 10%. Another argument is that the L-1B visa is seen as a way to get around the H-1B annual cap, and again, since there are more Indian nationals applying for the H-1B visa who did not qualify, it is okay to get tough on their L-1B visa applications. This too is a spurious justification. It is perfectly appropriate for an employer to try to file an L-1B visa for an employee who is qualified for that visa, notwithstanding the fact that he did not make it under the H-1B visa lottery. A person can be eligible for more than one visa classification.

Another justification is that the L-1B visa, like the H-1B visa, is used to facilitate outsourcing. In other words, US workers are replaced by L-1B visa workers who are paid less, and the jobs eventually get transferred to India. One can understand the concern about US workers being replaced by foreign workers, but this does not explain why a company which has a proprietary product that is sold to US financial services clients should get adversely impacted with an arbitrary denial of its L-1B visa application for a specialized knowledge employee.

Moreover, even if an Indian heritage IT firm, accused of outsourcing, wishes to bring in L-1B specialized knowledge employees, it is incumbent upon the USCIS to still meritoriously and objectively determine whether they qualify under the specialized knowledge criteria for the L-1B visa.   As explained in a prior blog, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. This vendetta, spurred on by the likes of Senator Grassley who is the new Chair of the Senate Judiciary Committee and even left leaning think tanks like the Economic  Policy Institute, to deny L-1B visa applications of Indian nationals have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers have always supplied at prices that American business and its consumers could afford. What has gone unnoticed is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that the US government now seeks to destroy. One can also recall Senator Schumer’s infamous slip of tonguewhen he referred to Indian IT companies as “chop shops” instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Gary Endelman adds in an e mail to the author “that the overly restrictive view of the L-1B discourages international trade and investment and that, by discouraging Indian migration to the USA, the USCIS actually expands the wage differential between India and the USA, thereby increasing outsourcing rather than limiting it.”

Indians are already disadvantaged in the US immigration system. As a result of the per country limits in the employment-based (EB) preferences, those born in India have to wait much longer for their green cards than others. In fact, Indian born beneficiaries of EB third preference I-140 petitions may need to wait decades before they can apply for green cards. Then, Indian three year degrees, and even other qualifications on top of the degree, do not get the same level of recognition than degrees from other countries. As a result, many who could qualify for the EB-2 now have to wait for a lifetime in the EB-3 for their green cards while their children age out, and may not be able to derivatively get the green card with their parents. It is even becoming harder to obtain an equivalency based on a three year degree. The latest revelation that the L-1B refusal rates for Indians is the highest, despite the fact that the claim is meritorious and the denial often happens at the renewal stage (after it was previously approved), only leads to one conclusion. It is discrimination. A mindset has crept into the system that L-1B visa applicants from India are undesirable, and ways are then found to deny the application.  The NFAP report is a wakeup call for fair minded people to question such discriminatory practices and to work towards a more just immigration system for people from all countries.