Tag Archive for: H-1B RFEs

Cyrus Mehta

New Mutant H-1B Gene – Undifferentiated Engineering Degrees

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It has become harder to obtain an approval of an H-1B visa petition under the Trump administration. The USCIS insists that an occupation must require a degree in a specific specialty. It constantly moves the goalposts to deny H-1B petitions, even if the occupation was previously readily approvable. A position that requires an engineering degree may now not be so readily approvable for H-1B classification.

Take for example the position of Operations Research Analyst. The Occupational Outlook Handbook, which the USCIS slavishly relies upon, describes the training and educational requirements for an Operations Research Analyst as follows:

“Many entry-level positions are available for those with a bachelor’s degree. However, some employers may prefer to hire applicants with a master’s degree.

Because operations research is based on quantitative analysis, students need extensive coursework in mathematics. Courses include statistics, calculus, and linear algebra. Coursework in computer science is important because analysts rely on advanced statistical and database software to analyze and model data. Courses in other areas, such as engineering, economics, and political science, are useful because operations research is a multidisciplinary field with a wide variety of applications. “

Winning an H-1B for an Operations Research Analyst should be a no brainer. It is clear that a specialized degree is required to enter the field. As the operations research is based on quantitative analysis, an engineering degree can provide the knowledge base for a qualified candidate to enter the field. The USCIS then plays “gotcha” when an operations research position requires an engineering degrees or because of the reference to an engineering degree in the OOH. This is the verbiage that the USCIS includes in its decisions to deny an occupation that may require an engineering degree:

“According to publicly available Internet resources, there are approximately forty (40) different types of engineering degrees ranging in specialties to include but not limited to Mechanical, Ceramics, Civil, Electrical, Environmental, Agricultural, Marine, to Electronics Engineering. As such, it can be determines that the OOH does not indicate that a baccalaureate degree in a specific field of study is the minimum educational requirement for Operations Research Analysts as needed in order to qualify the proffered position as a specialty occupation.”

Till now, it was presumed that an occupation that requires an engineering degree should qualify for H-1B classification. Although there are many types of engineering disciplines, the basic quantitative skills gained in an engineering degree program should equip the worker to perform the technical duties of a specialty occupation whether it is for the position of Operations Research Analyst, Software Developer or Computer Systems Analyst.

Even if the OOH does not refer to an engineering degree, the USCIS tends to object if the employer requires an engineering degree to qualify for the position. Thus, the OOH, with respect to Software Developers, states that “[s]oftware developers usually have a bachelor’s degree in computer science and strong computer programming skills.” But if the prospective H-1B beneficiary qualifies with an engineering degree rather than a degree in computer science, the USCIS will use that to either issue a request for evidence or deny the petition.

It seems that the engineering degree is suffering the same fate as the business degree. Requiring a general purpose business degree without more has never fared too well. The H-1B petition filed by an upscale Thai restaurant that required its manager to have a general purpose business degree was shot down. See e.g. Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir 2007). Still, the Appeals Administrative Office in a recent non-precedential decision, Matter of C-B-S- Inc., ID# 1308199 (AAO Sept. 6, 2018), has stated that “a bachelor’s or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation.”  The same logic should apply more so for an engineering degree. In fact, it can more be easily shown that the technical knowledge gained from an engineering degree, whether it is electrical or mechanical, ought to qualify the H-1B worker to be a software developer or an operations research analyst.

Both petitioners and beneficiaries should not take these denials lying down. As explained in a prior blog, such denials are in contravention to how a specialty occupation is defined under the INA. Under INA § 214(i)(1) a “specialty occupation” is  defined as an occupation that requires

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

It is not so obvious from a reading of INA 214(i)(1) that only occupations such as law or medicine would qualify for an H-1B visa on the assumption that only degrees  in law or medicine would allow entry into the occupation. Even in law, a law degree may not always be required. One can qualify to take the bar exam in some states through an apprenticeship in a law office. A physician may also qualify through either a Doctor of Medicine (MD) degree or through a Doctor of Osteopathic Medicine (DO). If the USCIS reads INA 214(i)(1) as applying to an occupation that requires a degree in one single specialty, as it is tending to with engineering degrees, then no occupation will qualify for the H-1B visa.  This is clearly not what Congress intended.   INA § 214(i)(1) ought to be read more broadly.

The USCIS should revert to a more commonsensical reading of the H-1B visa provision. In Tapis International v INS, 94 F. Supp. 2d 172, the court held that a “position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass …….various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.” The USCIS should be forced to adhere to holding in Tapis International.

Even if an employer requires a degree in engineering, in conjunction with a degree in computer science, it is atrocious for the USCIS to deny the H-1B petition because the engineering degree cannot qualify the worker for H-1B classification. The USCIS cannot categorically deny H-1B petitions because there exist 40 disciplines within engineering without considering the employer’s justification for such disciplines and how the prospective H-1B worker qualifies for the position. The USCIS must review this requirement in the context of the employer’s business. If a small mom and pop general retail store requires an engineering degree, the USICIS would be justified in looking at such an H-1B petition with skepticism.   On the other hand, a company that requires an analyst to design and develop a sophisticated artificial intelligence marketing tool should be able to justify degrees in computer science, engineering, math, business analysis or marketing. Each of these fields, and the specific coursework that was taken, would potentially equip an H-1B beneficiary to perform different aspects of the duties of the position.  An employer should also not be expected to specify the engineering field or limit the degree requirement to one specialty. The employer can have a general engineering degree requirement, and then assert in each petition, why the H-1B worker through the knowledge gained in his or her engineering degree program, whether it is electronics, civil or ceramic, equips the worker to perform the duties of the specialty occupation.

If the mutant H-1B gene afflicting engineering degrees is not excised, what is there to stop the USCIS from asserting the same logic to degrees in law or medicine? Could the USCIS assert that a JD degree or equivalent foreign law degree requirement is so general purpose that the employer must demonstrate the specialization within the law degree that would equip the H-1B worker to perform the duties of the position of a corporate attorney? Of course, that would make no sense. The knowledge developed from a law degree allows the prospective attorney to perform his or her duties in any legal specialization, be it corporate, tax or immigration law. This should be the case even if the attorney never took a course in corporate or immigration law in law school.     The same logic should apply to the knowledge developed in an engineering degree that would equip the H-1B worker to perform the specialized duties of a software developer position or an operations research position. If both positions rely on quantitative skills, those skills could be gained through an engineering degree program whether it was in civil or aeronautical engineering.   If the USCIS wholesale turns down H-1B petitions for positions that require an engineering degree, an employer should seek to challenge the denials in federal court, which like aggressive chemo therapy could potentially place the cancer in remission.

 

Cyrus Mehta

Immigration and Nationality Act Trumps America First

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President Trump’s America First policy has influenced how the United States views trade, immigration, the environment and global alliances. It is a radical departure from how the United States viewed itself before Trump took office. While previously the United States took the lead in forging the Paris climate accord, Trump withdrew from it. While the United States has promoted free trade as a basis for growing prosperity between nations, Trump withdrew from the Trans Pacific Partnership, which took years to negotiate under American leadership, and has signaled his intention to withdraw from NAFTA and the free trade agreement with a crucial ally South Korea. Although the title is deceptive, Trump’s America First doctrine, unfortunately, abdicates America’s leadership role in the world.

It is worth noting that the term America First also has an ignoble history, and has been associated with anti-Semitism.  The America First Committee (AFC) was founded in 1940 and opposed the involvement of the United States in World War II. AFC’s most notable spokesman Charles Lindbergh, the aviator, expressed not only sympathy for the persecution of Jews in  Nazi Germany, but further suggested that Jews were advocating that the United States enter a war that was not in the national interest. The AFC met a sudden death a few months later by disbanding when Japan attacked Pearl Harbor, which naturally propelled America’s involvement in World War II.

Trump has now again championed America First, which has already had a pernicious impact on immigration policy. Pursuant to America First that withdraws this nation’s outreach to the world be welcoming immigrants, Trump issued travel bans, increased immigration enforcement regardless of priorities, intends to cancel the Deferred Action for Childhood Arrivals (DACA) program and has provided full throated support for legislation that curbs legal immigration.   On April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order No. 13788. 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.

Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO is already being seen in the increased number of Requests for Evidence (RFEs) challenging the paying of Level 1 wages, even though employers have legitimately offered positions to entry-level workers under the H-1B visa program. The administration has also indicated that entry level Computer Programmers may not qualify for the H-1B visa. The State Department has made the following changes to the Foreign Affairs Manual with respect to providing guidance to consular officers regarding the issuance of nonimmigrant H, L, O, P and E visas:

9 FAM 402.10-2 Overview of H Visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2  Overview of L visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

9 FAM 402.13-2 Overview of O visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(O) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040213.html

9 FAM 402.14-2  Overview of P visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(P) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040214.html

9 FAM 402.9-2  Overview of E visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.  You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.  It is with this spirit in mind that cases under INA 101(a)(15)(E) should be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040209.html

What is interesting that even though the Buy American Hire American Executive Order singles out H-1B visas, the FAM has been amended to incorporate America First principles into other temporary visa programs that do not require payment of US source wages. For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under the new EO, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. The Buy American Hire American EO was not in existence when Congress created the L, E or O visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa  was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so.

If government agencies seek to reinterpret INA provisions in light of the Buy American Hire American EO resulting in denials of visa petitions, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. A presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if visa petitions and applications are denied under President Trump’s interpretation of INA provisions pursuant to the Buy American Hire American EO, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

What the Trump administration cannot change through Congress, it is trying to do so through executive orders. The Buy American Hire American EO further tries to jolt the immigration system that has been carefully crafted by Congress over the years. Quite apart from pleasing Trump’s political base it is unclear whether the EO will create more jobs. Most economists credibly argue that more immigrants create more jobs, and that restricting immigrants will not necessarily create more jobs for American workers. America’s most successful companies have been founded by immigrants and most of its recent Nobel prize winners were not born in the United States.   The plain meaning of statutory provisions in the INA should prevail over ideologically motivated executive orders under Trump’s America First doctrine.  Thankfully, the courts will provide a forum to allow those adversely impacted by new interpretations to demonstrate that the INA trumps America First.

On this Labor Day, it is worth reflecting whether a more welcoming immigration policy will benefit America more than Trump’s America First. Immigrants do not come to America because it is great; in fact, to the contrary, they come to America and make it great! America First will make the nation less great.