Tag Archive for: H-1B denial

Cora-Ann Pestaina

Court Shoots Down Embarrassing Leaps by USCIS to Justify an H-1B Denial

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Ever got that frustrating feeling that the USCIS adjudicator first decided that the H-1B petition needed to be denied and only then set about finding reasons, however shaky, to support that denial?  Ever wondered how it is possible for the adjudicator to completely ignore the preponderance of the evidence standard in favor of the criminal standard of beyond all reasonable doubt? The case of Innova Solutions, Inc. v. Kathy A. Baran, case number 2:18-cv-09732 in the US District Court for the Central District of California evokes these exact types of feelings and questions.

As background, except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings) . . .

The “preponderance of the evidence” standard requires that the evidence demonstrate that the applicant’s claim is “probably true,” where the determination of “truth” is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that “[t]ruth is to be determined not by the quantity of evidence alone but by its quality.” Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.  See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Matter of Chawathe, A74 254 994 (Admin. Appeals Ofc. / USCIS Adopted Decision, Jan. 11, 2006).

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that the petitioner’s claim is true. Cases like Innova demonstrate that this standard is surely not being applied, at least not across the board.

Innova sought to employ the foreign national beneficiary as a Solutions Architect to work in-house at their corporate headquarters developing their proprietary software and hardware. USCIS issued what has become a typical RFE requesting additional information to establish the specialty occupation nature of the position; the beneficiary’s qualifications; and that an employer-employee relationship existed.  Innova’s RFE response included a cover letter explaining the type of the work in which the beneficiary would be engaged; a description of the beneficiary’s typical day by percentage; an organizational chart; a Proof of Concept for the project the beneficiary would be involved with; Innova’s tax returns; Innova’s lease for the area where the Beneficiary would work; and an overview of Innova. Still, USCIS denied the petition on the grounds that the employer-employee relationship had not been established and Innova had failed to demonstrate that the beneficiary would be working in-house and not placed with an end-client and failed to show sufficient in-house employment for the duration of the requested H-1B period.

Innova filed suit thereby allowing us to see that no argument is too weak for USCIS to rely upon.

Despite Innova’s clear statements in its initial petition and RFE response, USCIS argued that it was rendered incapable of determining whether the beneficiary would be working on Innova’s product or whether he would be working at a third party client site all because Innova’s website indicated that Innova’s main function is to provide information technology consulting services to other companies. But the court pointed out that this same website indicated that Innova provided “services” and “solutions” to its clients. Under the “solutions” portion of the website was information about software programs and applications created by Innova. The court stated that “because USCIS visited Innova’s website and relied on the website as evidence in making its findings, USCIS may not then ignore evidence on the website contradicting its position.”

Another reason for USCIS’ denial was that Innova failed to provide sufficient evidence to establish that it created its own products in-house. To justify its reasoning, USCIS pointed out that the Proof of Concept PowerPoint that Innova submitted with its RFE response merely established that the product exists and not that Innova is the company producing it or that the beneficiary would work on it. USCIS dismissed information on the project because all information about it “was submitted by petitioner or petitioner’s counsel in counsel’s cover letter”, i.e. there was no published or printed information. USCIS even went as far as to claim that despite Innova’s submission of a copy of its lease for a 450ft space, it remained unknown whether this is sufficient space to produce the information technology project or whether the space is being used to develop and produce the claimed product. USCIS also claimed that Innova’s tax returns were not sufficient to establish that the company produced a product that it sold within those tax years.

Thank goodness for the existence of rational judges. The court held that it was illogical for USCIS to dismiss Innova’s PowerPoint in its entirety just because there was an absence of printed work published about the product. The product is nonexistent and Innova consistently stated that the beneficiary was needed to produce the product. Regarding USCIS’ purported lack of knowledge as to whether the corporate headquarters would be able accommodate the work on the project, the court pointed out that it was entirely clear that the beneficiary would only require a desk and a computer! And, as for the tax returns, the court reminded USCIS that these were only submitted to prove that the company had sufficient work available for the beneficiary and not to prove it sold goods. Further, the product on which the beneficiary would work was intended to be used in-house to provide solutions to Innova’s clients and there was no stated intention to sell it.

Overall, USCIS claimed that it had to deny the case due to “numerous inaccuracies and contradictions.” Thankfully, the court did not find these to be plausible. The court shot down USCIS’ claim that there was an inaccuracy in Innova’s statement that it had 177 employees because the organizational chart it submitted showed only 7 people. The court pointed out that Innova never claimed that the chart listed every single employee. It was actually submitted to show that the beneficiary would report to the Vice President of the company.  USCIS also isolated one job duty that indicated the beneficiary would “clarify the ambiguities and issues with the business stakeholders and help the team in proper execution of the project” and used this to state that it appeared he may be working with clients. The court found that there was no evidence that he would not be doing this in-house as the company stated.

And, in its biggest leap, USCIS took Innova old job advertisements, submitted to prove that Innova typically required a Bachelor’s degree for the offered position, wherein Innova had stated a requirement for travel to client sites, and used these to support its argument that the beneficiary would be traveling to client sites.  The court had to point out that a showing relevant to the specialty occupation argument did not demonstrate that the beneficiary would also be required to travel.

The jumps and leaps that USCIS made to deny this case truly indicate a complete disregard for the preponderance of the evidence standard. Rather than adhering to the rule of law, USCIS is blatantly more concerned with its agenda to maintain its steady attack on the H-1B visa category. With all the evidence submitted by Innova, it was unquestionably “more likely than not” that its claims were true. While the court didn’t go as far as to state this, it appears that USCIS applied the “beyond all reasonable doubt” standard, the highest standard of proof possible. Thankfully, they were not allowed to get away with it in this instance.  Hopefully, more and more employers are finding the courage to fight back and illuminate for the rest of us, how far USCIS will sometimes go and to provide us with case law that can be cited to prevent future, similar casualties, especially for employers who simply cannot finance a federal law suit. Plucky Innova deserved to win this one even though it has lost previously in other H-1B matters.  RFE responses should remind USCIS that it needs to consider the record as a whole; that USCIS cannot isolate specific statements to try to justify its claims; and that there must be a rational connection between any stated reasons for denial and the actual facts of the case. And, as if H-1B petitions haven’t gotten hard enough, it may behoove us to sit with each piece of evidence and try to imagine how it could possibly be misinterpreted or reimagined to justify a denial. Although, try as we might, some things are just unimaginable.

 

 

Cora-Ann Pestaina

Recent H-1B Case Brings Hope that Reliance of the Umbrella “All Other” Occupational Classification Need Not Be Fatal

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As the U.S. Citizenship and Immigration Services (USCIS) continues its shameful and relentless attack on the H-1B visa program under the misguided “Buy American Hire American” Executive Order, it is important that we continue to fight back and cases like Relx Inc. v. Baran give us the hope that we need in order to do so.

As background, with every H-1B petition, the petitioner must file a Labor Condition Application (LCA) with the Department of Labor (DOL) listing the most appropriate occupational classification for the offered position. This classification is represented by the Standard Occupational Classification (SOC) code. Naturally, there isn’t an SOC code for every single occupation. Therefore, H-1B petitioners must choose from a limited list of SOC codes. Recognizing that it could not realistically cover every single occupation, the DOL created certain umbrella categories called “All Other” which represent occupations with a wide range of characteristics that do not fit into a specific detailed SOC. USCIS will often pounce on H-1B petitions where the petitioner has chosen an SOC code representing an “All Other” classification. There are times when the employer has no choice as the  occupation, especially emerging ones, fit under “All Other” only. USCIS often issues a Request for Evidence (RFE) stating that the DOL’s Occupational Outlook Handbook (OOH) “does not contain descriptions for this position” and therefore it has not been established that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

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

  1. A baccalaureate or higher degree or its equivalent is normallythe minimum requirement for entry into the particular position;
  2. The degree requirement is commonto 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 normallyrequires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A).

We have blogged extensively, see here, here, and here,   about the H-1B specialty occupation criteria and the difficulties faced by H-1B petitioners in demonstrating that an offered position is indeed a specialty occupation. Despite the fact that there is no existing regulation designating the OOH as the bible on specialty occupations and the OOH even includes its own disclaimer advising that it should not be used for any legal purpose, the USCIS nevertheless frequently issues RFEs and denials on H-1B petitions based on the fact that the OOH does not include a definitive statement that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

In Relx, the plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a Data Analyst for Lexis Nexis in F-1 student status, alleged that USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act (APA) when they denied LexisNexis’ H-1B petition on behalf of the Data Analyst concluding that the position was not a specialty occupation. The U.S. District Court for the District of Columbia granted summary judgment for plaintiffs and denied defendants’ motion to dismiss. The proffered position had been classified under the occupational title of Business Intelligence Analysts which bears the SOC code of 15-1199.08 and falls under the more general occupational title of “Computer Occupations, All Other” with the SOC code of 15-1199. The USCIS is well aware that because the DOL has not amended its LCA to also accept 8 digit SOC codes, H-1B petitioners are not able to classify their offered positions using 8 digit SOC codes and must instead utilize the more general occupational title bearing a 6-digit SOC code. Accordingly, in Relx, the petitioner used the SOC code for “Computer Occupations, All Other” but explained that the most specific classification was Business Intelligence Analysts. The petitioner also referenced O*NET, which contains a detailed description of the Business Intelligence Analyst occupation relevant to the inquiry on whether or not the position is a specialty occupation. Similar to the OOH, O*NET is a database which serves as a library for information on the working world and it includes information on the knowledge, skills, abilities, interests, preparation, contexts, and tasks associated with over 1,000 occupations.

In a typical move, USCIS disregarded all this and in its denial of the petition stated that the OOH does not contain detailed profiles for the computer occupations category and that the petitioner’s reference to O*NET, standing alone, failed to establish that the occupation was a specialty occupation. The court found this conclusion to be “factually inaccurate and not supported by the record.” The court pointed out that the OOH does explain that that the typical entry level education for “Computer Occupations, All Other” is a “Bachelor’s Degree (see here) and inasmuch as the OOH did not contain a detailed profile for the computer occupations category, it contained an explicit O*NET crosswalk reference and O*NET stated that “most of these occupations require a four-year bachelor’s degree but some do not” with further detail that more than 90% of employees in the occupation require at least a bachelor’s degree.

Overall, the Relx case also demonstrates how determined USCIS can be in its effort to deny these H-1B petitions. Upon receipt of the denial, plaintiffs filed suit but shortly before they filed their opening motion, the government reopened the petition without providing any notification or reason and issued a second RFE. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had already reopened the case! Among other things, the court noted that the government’s failure to set forth its reasons for a decision to reopen the denial constitutes arbitrary and capricious action, and the court must undo the agency action. The court pointed out that the government issued another RFE requesting nearly identical information as it did when it last reviewed the petition. Also, the Data Analyst’s F-1 visa was set to expire and she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship.” The court found the government’s reopening of the case to be “highly suspect and contrary to the regulations” since no new information was requested and that the petitioner had already submitted a “mountain of evidence” that “more than meets the preponderance of the evidence standard.” The court held that the USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the Data Analyst.

In our past blogs (for example, here), we have encouraged H-1B petitioners facing these challenges to be fearless and to go directly to federal court. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the Administrative Appeals Office (AAO) and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Most recently, we followed our own advice and filed a complaint in federal court in a case, very similar to Relx in that it involved the petitioner’s use of the “Computer Occupations, All Other” category; a foreign national in F-1 status and an arbitrary and capricious denial that, among other things, stated that where the occupation listed on the certified LCA was not listed in the OOH,  the petitioner could not support its assertion that the position was a specialty occupation by reference to the O*NET. Even the expert opinion of a college professor was rejected. Despite the duties being described in a detailed manner to demonstrate their complexity, the USCIS cherry picked a few words and phrases from the job duties to erroneously conclude that they did not require the qualified person to possess a Bachelor’s degree or higher in the enumerated fields.  In the end, USCIS reopened the case and issued a second RFE, basically identical to the first one. Petitioner responded to the RFE in great detail, with additional expert opinions, and the case was approved.

Based on the number of denials that employers have experienced in recent times, the H-1B process can seem daunting especially when filing cases which must be classified under one of the “All Other” umbrella categories. In these cases, an RFE is expected and that may be followed by a denial. Hopefully not anymore, as we now include a discussion of the court’s decision in Relx. But at the end of the day, these cases demonstrate that we mustn’t be afraid to sue. The Relx decision proves that federal judges can very well have a different reaction than the typical USCIS adjudicator and may be shocked and angry at USCIS’ actions.

 

Cyrus Mehta & Sophia Genovese

Administrative Review Versus Judicial Review When an Employment-Based Petition Is Denied

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Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by attracting worldwide talent, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. Rather, the administration continues to attack all pathways to legal immigration under its misguided America First philosophy.

The stakes for an approval have become even higher, as USCIS recently announced that it will “issue an NTA [Notice to Appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” In yet another recent policy, USCIS instructs adjudicating officials to deny applications based on the lack of “sufficient initial evidence” without the issuance of an RFE or notice of intent to deny. This could be subjectively viewed as resulting in more denials followed by NTAs.

Upon the USCIS Service Center denying an employment-based petition, the petitioner may file Form I-290B, Notice of Appeal or Motion in order to appeal to the Administrative Appeals Office (AAO) within 30 days (plus 3 days if received in the mail) of the decision. Alternatively, the petitioner may request a motion to reopen or a motion to reconsider or both with 33 days of the decision. The petitioner may also opt to seek judicial review in federal court without going to the AAO. In addition, a petitioner may also wish to re-file the petition, which may at times be the best strategy. However, the re-filing option may not always be available, such as when the H-1B cap for the fiscal year has already been reached or the beneficiary’s nonimmigrant status has ended and consular processing would be problematic for whatever reason.

This blog will discuss the advantages and disadvantages of administrative review over judicial review.

Advantages of Seeking Administrative Review

Filing Form I-290B is more administratively convenient, efficient and less costly for the client. If the USCIS has made an obvious error, requesting that the USCIS either reopen or reconsider or do both may be an effective and simple strategy. For example, if an H-1B is erroneously denied without an RFE or NOID, and it was clearly an error, the filing a motion to reopen may make more sense over judicial review.

In the event that the petition has been denied on substantive grounds, filing an appeal to the AAO allows one to supplement the record by providing additional evidence such as a more detailed expert evaluation. The process is less formal than going to federal court. Writing the brief in support of the appeal or motion is an extension of what was already said in the response to the Request for Evidence prior to denial, although the new brief must make new and creative arguments to overcome the denial.

Even when the intention is to file an appeal on Form I-1290B, the official who made the initial decision, according to agency regulation, will first review the appeal and determine whether to take favorable action and grant the benefit request. This process is called “initial field review.” Thus, every appeal is first treated as a motion to reopen or reconsider. There are many occasions where a case based on an egregious denial can be reopened and reversed without going through the AAO.

There is nothing to lose and a chance of a favorable result – the AAO could either outright reverse a denial or remand back to the USCIS Service Center, which in turn, could issue another RFE. If the AAO dismisses the appeal, one can still seek review in federal court.

Disadvantages of Seeking Administrative Review

The success rate at the AAO is very low. In FY2017, with respect to H-1B petitions, the AAO dismissed 598 appeals, sustained only 22 and remanded 44. With respect to L-1 petitions, the AAO dismissed 181 appeals, sustained only 15 and remanded 6.

The process is also not expeditious. If the beneficiary is already in the US and does not have another underlying nonimmigrant status, he/she will start accruing unlawful presence for purposes of triggering the 3/10 year bar upon the denial of the request for change or extension of status. If the individual’s appeal is not successful after 180 days of unlawful presence have accrued, the beneficiary will be subject to the bars upon departing the US.  (If the individual’s appeal is successful, any related application for change of status or extension of stay is likely to be reopened on Service motion following the granting of the petition, but one cannot know for sure in advance whether this will happen.)

The AAO may not just affirm the USCIS denial, but may also improve upon it by providing better reasoning or even affirming for different or additional reasons. This would render it more difficult to seek judicial review.

Advantages of Seeking Judicial Review

The case is reviewed by a judge who is not part of the USCIS and is not influenced by its prevailing policy as an adjudicator within the AAO is.

There may also be an opportunity to have the case resolved with an Assistant US Attorney who may advise his/her client, the USCIS, to reverse the decision rather than fight it out in court.

If the plaintiff prevails, the attorney may seek fees under the Equal Access to Justice Act.

One can ask for extraordinary remedies through a preliminary injunction (or temporary restraining order followed by a preliminary injunction) to maintain the nonimmigrant status of the beneficiary during the pendency of the matter, or at least prevent the beneficiary from accruing unlawful presence during the pendency of the matter.

Moreover, if an NTA is issued upon the denial of petition, then one potential advantage in federal court litigation is to ask the court in the preliminary injunction to restore the status of the beneficiary, which could then be grounds for termination of the removal proceedings. It should be noted that business immigration attorneys will also need to either hone in or develop their litigation skills for beneficiaries who are placed in removal proceedings, which was discussed in our previous blog, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy.” Attorneys will need to simultaneously navigate the removal process while challenging the denial of the underlying petition.

In a few cases, the beneficiary has been able to establish standing as a plaintiff in litigation involving nonimmigrant visas. See e.g., Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016). In the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

Disadvantages of Seeking Judicial Review

Seeking judicial review can be far more expensive and time consuming. In addition, a federal court may exercise a more deferential standard, where under the Administrative Appeal Act (APA) a denial may be set aside only if  it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). Factual findings may be set aside by a federal court only if “unsupported by substantial evidence”—which is not quite the same thing as review for “clear error” as in appellate review of a lower court’s fact-finding, but is still far from de novo review. See 5 U.S.C. § 706(2)(E); Dickinson v. Zurko, 527 U.S. 150 (1999).  The AAO, on the other hand, can undertake a de novo review of all issues of fact, law, policy, and discretion, and can also address new issues that were not addressed in the prior decision. See AAO Practice Manual, Chapter 3 Appeals.

New evidence cannot be introduced into the record.

Some employers also fear government retaliation, although this may be anecdotal and not necessarily official policy. Employers also are shy about unwanted publicity when they become plaintiffs.

The stakes have never been higher for employment-based immigration. With the very real threat of deportation looming, practitioners and employers alike must weigh the benefits and risks with any of these options when seeking review of a denial. For some, a motion to reopen and reconsider may be sufficient for a more obvious error. Others may wish to resolve a recurring, systemic issue by seeking judicial review in a district court. Regardless, it is clear that the role of the immigration practitioner, especially those practicing business immigration, must be prepared to increasingly litigate these petitions in order to prevent further carnage of the existing immigration system.