Tag Archive for: Inc.

Cyrus Mehta

Making the Case of the Manager under the L-1A Visa Whose Subordinates are AI Bots

/0 Comments/in /by

When the Administrative Appeals Office (AAO) designated Matter of Z-A- Inc. as an “Adopted Decision” in 2016 it was seen as a breakthrough as it recognized that a US company can rely on its resources outside the United States to produce products or provide services. Matter of Z-A-, Inc. held that an L-1A intracompany manager who primarily manages an essential function can be supported by personnel outside the United States within an international organization and also recognizing that such support was possible with the advent of internet technologies. A USCIS officer could no longer deny L-1A classification to such a manager because they were not supported by personnel within the United States.

Generative AI -data-trained technology that uses prompts to create content—has seen a massive uptick in adoption since the introduction of ChatGPT on November 30, 2002. As AI enabled chatbots can perform both complex and routine tasks within an organization, a credible case can be made that an L-1A manager may be supported by chat bots to manage an essential function within an organization rather than by humans. A recent estimate by Goldman Sachs found that generative AI could eventually automate activities that amount to the equivalent of some 300 million full-time jobs globally — many of these in office roles like administrators and middle managers.

The noncitizen 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  in Matter of Z-A-, Inc. 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 manage the function 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.

In reversing the denial of the L-1A petition in Matter of Z-A-, Inc. the  AAO stated:

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 2016 blog written shortly after Matter of Z-A-, Inc. it was observed that “[i]n 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.”

Practitioners may wish to advocate that generative AI can also enable the L-1A manager to primarily manage an essential function as opposed to primarily perform the tasks necessary to produce a product or service. In Matter of Z-A-, Inc., the AAO recognized that resources overseas could support the role of the L-1A manager. This sets the groundwork to argue that external resources, not limited to human employees, can be considered in evaluating the managerial capacity of the beneficiary. The L-1A petition can potentially include details of the organizational structure and staffing levels, showing that AI chatbots effectively supplement the limited human resources. The supporting evidence can further illustrate how AI chatbots handle routine tasks by interfacing with customers, thereby allowing the L-1A manager to focus on higher-level managerial duties. The evidence provided can further demonstrate that  AI chatbots relieve the L-1A manager from performing the routine day to day operational and administrative duties. This aligns with the requirement that the manager primarily manages an essential function rather than perform it with the help of AI technology.

Following Matter of Z-A, Inc. the AAO in  Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), provided important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization. In Matter of G, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with its analysis, concluding that an essential function must be a core activity of a petitioning organization. Relying on these definitions, the AAO first found that the Petitioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the organization.”  The AAO further recognized that an organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services.”

Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Immigration and Nationality Act (INA).

INA § 101(a)(44)(A) defines “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

 

The foreign manager seeking immigrant classification under INA § 203(b)(1)(C) in Matter of G- was the Director, Financial Planning and Analysis (FP&A) at a large multinational technology corporation. The company first transferred the Beneficiary to the U.S. on an L-1A visa to seek business opportunities and foster growth of the company in the U.S. markets. After a few years of success, the company decided to petition for the worker to permanently reside in the U.S. under INA § 203(b)(1)(C). The Petitioner explained in their I-140 petition that the Beneficiary would continue to direct and develop revenue forecasts and analysis for the entire company, lead mergers and acquisitions, and oversee strategic pricing analyses, among other managerial duties. However, the USCIS denied Form I-140, finding that the Petitioner did not establish that the Beneficiary would be employed in a managerial role. It is not unusual for one Service Center of the USCIS to approve the L-1A visa and another Service Center to deny the I-140 petition.  Upon review, the AAO reversed, and sought to clarify the role of a function manager.

In applying their new function manager analysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and analysis” qualified as a function within the organization as it was clearly defined with specificity and indicated a clear goal of generating data to assess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and analysis for the worldwide organization, lead mergers and acquisitions, and oversee strategic pricing analysis.”  The AAO continues that the Beneficiary will be supported by six direct and three indirect reports who will “perform the routine duties associated with the FP&A function.”  Critically, the AAO finds that even though the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the organization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Petitioner clearly established that the Beneficiary will have discretionary authority over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Using the same analysis as in Matter of G,  and as set forth in the USCIS Policy Manual, a company can establish that its AI technology is an essential or core function of the organization. It can further be established that the beneficiary will primarily manage this function, and will be supported by AI bots when managing the function. This would be analogous to Matter of Z-A, Inc. which recognized the ability of foreign personnel outside the United States to support the L-1A manager in the US.  It can also be established that the L-1 manager is employed at a senior level within the organizational hierarchy and that they have discretionary authority over the day to day operations.

A Forbes article that provides examples of how brands are replacing their employees with AI technology. It provides examples of how Klarna, the Swedish-based “buy now pay later service”,was using an OpenAI powered customer service chatbot that was doing the work of 700 customer service agents faster and more efficiently than human workers. The article also notes that large financial service companies like Goldman Sachs and Morgan Stanley are introducing AI tools that can replace much of the entry level white collar work such as preparing spreadsheets, creating PowerPoints and analyzing financial data. BestBuy is replacing its geek squad agents with generative AI technology to provide customers with personalized, best in class tech support experiences. Even local governments are resorting to AI. The Texas Education Agency is rolling out a “new artificial intelligence-powered scoring system set to replace a majority of human graders in the region.” If a petitioning entity is using similar AI technology a case can be made that AI is relieving the manager from performing the day to day tasks while the manager manages the essential function. An organization that relies on bots may have a smaller number of employees, but one should push back against a negative finding only because of the small size.  In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that although size is a relevant factor in assessing whether a company’s operations are substantial enough to support a manager, “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA 101(a)(44)(C) (“[i]f staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”).

While it would be more feasible to build the L-1A case for a functional manager who is supported by AI technology, the next step in the evolution of L-1A jurisprudence would be to establish that even a people manager might qualify for this visa classification if they supervise AI chatbots rather than humans. These AI bots can take the place of other “supervisory, professional, or managerial employees” under INA 101(a)(44)(A)(ii) who are supervised and controlled by the L-1A manager. Under  INA 101(a)(44)(A)(iii) the manager must also have “the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization)” of the employees they supervise. Admittedly the L-1A manager may not have the authority to hire and fire bots or take other personnel actions as they are not employees. The manager, however, could have equivalent authority such as the ability to upgrade the AI technology or replace the bots with other bots to comply with INA 101(a)(44)(A)(ii) and 101(a)(44)(A)(iii). This may seem far fetched for now, there may come a time when the USCIS might be persuaded to approve an L-1A petition for a people manager who will be managing and supervising AI bots rather than humans.

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

 

 

 

 

Cyrus Mehta

Although Section H.10-B Has Disappeared in the New ETA 9089, Will Its Ghost Continue to Haunt Us?

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

The new ETA 9089 form has gone into effect and DOL stopped using the old version of the form on the evening of May 31, 2023. The new form does not have Box H.10-B. In our previous blog, we discussed the rise in PERM labor certification denials related to question H.10-B between October 2022 and March 2023. Does that mean that the problem has gone away? Not entirely, since the new ETA 9089 links to the Form ETA 9141 – the application for a prevailing wage determination – which asks an analogous question to H.10-B regarding the occupation required if employment experience is required. If the employer did not respond appropriately to the analogous question in ETA 9141 that now links to the new ETA 9089, will the DOL still deny labor certification?

This blog is part of a series, see here and here, that  address some of the numerous questions and issues raised by these new forms.

As background, Box H.10-B of the previous version of the ETA 9089 asked employers to “identity the job title of the acceptable alternate occupation” if experience in an alternate occupation is acceptable. The DOL had promulgated little guidance on this question, so immigration lawyers completed this question in a variety of ways, including describing the experience such as “2 years of experience in engineering management emphasizing cloud-based product development” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. This is because foreign national workers often had a number of job titles in their prior experience, which may not have reflected the job offered in the labor certification. For instance, with respect to the position of Engineering Manager, the foreign worker may have had similar experience in prior engineering management positions, but may have held titles that had little direct connection to the duties, such as Associate or Specialist. Hence, it was more appropriate to describe the experience gained rather than the titles in the prior positions, as this approach would define the employer’s job requirements with greater clarity.  Historically, the DOL had accepted PERM applications that responded to question H.10-B in this way. Since the spate of denials from October 2022, the Office of Foreign Labor Certification (OFLC) communicated the following guidance to the American Immigration Lawyers Association (AILA) in November 2022 in response denials on this issue:  “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.

The denials concerning question H.10-B centered on the idea that question H.10-B is not properly completed if the employer fails to list specific job titles. The DOL therefore took the position that the entire PERM application is rendered incomplete if this question is not completed properly. The DOL cited to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

The DOL responded to reports of increasing PERM denials concerning question H.10-B, and posted a notice that read as follows as its website on April 14, 2023:

OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue. OFLC will identify applications that were denied for this issue and for which reconsideration has not yet been requested; employers whose applications have been denied solely for this reason and have not yet requested consideration are encouraged not to submit a request for reconsideration. Where reconsideration has been requested, OFLC will prioritize processing for any pending reconsideration requests based on denials where this is the only denial issue.

Although this notice has now been removed, it is reproduced as AILA Doc. No. 23041700. In our firm’s experience, PERMs denied solely on a question H.10-B issue were certified rather quickly after a Requestion for Reconsideration (“RFR”) was filed. Interestingly, though, while OFLC acknowledges that it has not adjudicated H.10-B issues in a consistent manner, it states that some of the denials were justified, stating:

…OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles; rather, they include statements such as “see H.14 – Special Skills.” The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.

OFLC evaluated these denials and determined that while they are appropriate, it has not been consistent about when it denies an application for this reason, which could confuse filers.

On April 24, 2023, the Board of Alien Labor Certification Appeals (BALCA) issued an important decision addressing H.10-B denials. In Matter of Charter Communications, Inc., 2020-PER-00171 (Apr. 24, 2023), BALCA held that an employer’s failure to list specific occupation titles in box H.10.B. alone was not sufficient grounds for denial of a PERM application, also noting that the OFLC has dealt with this issue in an inconsistent manner in its adjudication of PERM applications. The employer in this case had inserted the following in box H.10-B: “Please see [Section] H-14.” Id. The employer’s response to section H.14 read as follows: “Bachelor’s degree, or foreign equivalent, in Engineering, Computer Science, or [a] related field. Must have 7 years of experience working with DSG/DAVIC set top boxes; and managing, maintaining, and configuring Linux operating systems. Must have 5 years of experience supporting software applications for back office servers.” Id. The Certifying Officer denied certification, and affirmed its denial after the employer filed a Request for Reconsideration (“RFR”), asserting that section H.10-B requires an occupation or job title. BALCA vacated the denial and remanded the PERM application for certification, reasoning that: “…the Employer persuasively argued why, in this matter, failing to include the job title of an acceptable alternative occupation was immaterial to the CO’s review of the substance of the Form 9089. The Employer precisely detailed the skills needed to satisfy the requirement that “experience in an alternate occupation” was acceptable. […] Section H.10-B conveyed significantly more information than simply listing the job title of an acceptable alternate occupation.” Id.

While box H.10-B has disappeared from the new ETA 9089, box F.b.4.b. of the new 9141 with respect to minimum job requirements still asks employers to “indicate the occupation required” if employment experience is required for the position. See AILA Doc No. 23050101. On the previous version of the ETA 9141, which included the same version of this question as the new 9141, employers often responded  by indicating “see addendum” and listing the full requirements of the position rather than just the occupation, such as “2 years of experience in engineering management emphasizing cloud based product development”, in the addendum. Because the new ETA 9141 will link to the ETA 9089 and certain fields will be populated automatically, uncertainty for practitioners remains, even though box H.10-B itself has disappeared, as the response to box F.b.4.b may not have been in compliance to the recent guidance provided by OFLC with respect to H.10-B. These ETA 9141s were prepared and submitted in 2022, even before the H.10-B denials, and do not contain the preferred language recommended by OFLC in November 2022. They will now link to the new ETA 9089. The employer will not have an opportunity in the new ETA 9089 to include any rehabilitative language as it did in response to H.10-B closely analogous to DOL’s suggested  “any occupation in which the required experience was gained” language.  Will the DOL deny the ETA 9089 because the preferred language was not included in the previously approved ETA 9141?

Although only time will tell whether section H.10-B will haunt us despite its disappearance in the new form, employers who have not listed specific job titles  in box F.b.4.b. of the 9141 should be able to take reassurance from BALCA’s decision in Matter of Charter Communications, which although it pertained to an H.10-B denial, seems to support the more general idea that an employer’s failure to list specific job titles is not sufficient justification for denial of a PERM application.  Employers should also be able to argue that 20 CFR § 656.17(a), the provision used to justify PERM denials based on box H.10-B, pertains only to an  incomplete Form ETA 9089. If the DOL issues a denial based on an incomplete ETA 9141, there should be a strong legal basis to challenge the denial under 20 CFR § 656.17(a) in addition to the reasoning provided in Matter of Charter Communications. Another point in favor of challenging any denial is that the ETA 9141 with respect to alternative job requirements at box F.c.4.a asks for the number of months of alternate experience. It does not ask for the job title in the alternate occupation even if box F.b.4.b asks for the occupation required. It is hoped that DOL will not use the logic from its H.10-B denials to deny ETA 9089s in the new system because the occupation was not mentioned in response to box F.b.4.b. of the 9141. If it does, there will be ample basis to challenge the denial and forever exorcize H.10-B’s ghost.

The DOL sees the new 9089 as the solution to all the ambiguities in the old ETA 9089.  However, we all know that the new ETA 9089 is not the panacea to all the problems in the old form and continues to create additional ambiguities. We will need to remain vigilant and point these issues out as they play out including challenging potential denials to BALCA and even in federal court.

[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

Reviving The National Interest Waiver For International Entrepreneurs

/0 Comments/in /by

A proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;

– Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation. What is truly lacking is the lack of a pathway to permanent residence for the entrepreneur.

Several organizations and individuals submitted comments to the rule by the deadline on October 17, 2016. The Alliance of Business Immigration Lawyers, www.abil.com, of which I am a shareholder and member, also submitted comments in order to improve the rule and point out its limitations. The thrust of the comments was to make parole more accessible to entrepreneurs by lowering the investment amounts and expanding the types of persons who could qualify as investors. I was pleased to be part of the ABIL comment team of distinguished immigration attorneys, and my focus was to comment that the rule also provides a pathway to permanent residence. If the rule does not provide a pathway to permanent residency, it will not be viable at all. It is thus imperative that the rule also provide a pathway for permanent residence through the National Interest Waiver. In fact, this is not the first time that the DHS has thought about providing a pathway for permanent residence to entrepreneurs.

When USCIS announced its policy to encourage foreign entrepreneurs to take advantage of the existing immigration system on August 2, 2011, it provided Question and Answers on the Employment-based Second Preference (EB-2 Q&A) suggesting that an entrepreneur can be sponsored through a “national interest waiver”. The EB-2 (Q&A) acknowledges  Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT), which set forth a three-prong test, and how it could apply to entrepreneurs seeking the NIW.

With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed “in an area of substantial intrinsic merit” and that the “proposed benefit will be national in scope.” It was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern was addressed in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

The third criterion in NYSDOT is extremely opaque and difficult to overcome. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.” The AAO went on to further illuminate this criterion as follows: “Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

Still, the EB-2 Q&A provides helpful guidance to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Nevertheless, if the parole rule provides guidance on how to seek a NIW, it should do away with the NYSDOT test, especially the subjective third criterion. Indeed, when President Obama’s executive actions on immigration were announced on November 20, 2014, a memo specifically aimed to improve the system for skilled immigrants also sought to:

Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy

ABIL therefore suggests that the final rule should contain a rebuttable presumption stating that an international entrepreneur who has maintained parole status for five years is presumed to qualify for the national-interest waiver. The five years should be extended for entrepreneurs who have already started the permanent residency process, however long it takes, given the processing delays and backlogs. Alternatively, because of prolonged visa quota backlogs, those which adversely affect persons in the EB-2 and EB-3 preferences such as beneficiaries born in India and China, ABIL suggests that entrepreneurial parolees be able to use the NYSDOT national-interest waiver standards to qualify as a person of extraordinary ability under INA § 203(b)(1)(A). Even if an entrepreneur cannot readily meet the three out of ten criteria under 8 C.F.R. § 204.5(h)(3), the petitioner can also qualify as a person of extraordinary ability by submitting comparable evidence under 8 C.F.R. § 204.5(h)(4). Hence, the final rule should expressly provide that comparable evidence includes (but is not limited to) proof that an entrepreneur meets the NYSDOT national-interest waiver criteria, and thus may qualify as a person of extraordinary ability.

Given the lack of certainty in a national-interest waiver adjudication due to NYSDOT, ABIL further suggests that the seven factors set forth in the non-precedent decision of Matter of Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992) be reconsidered. The seven factors include 1) improving the U.S. economy; 2) improving wages and working conditions of U.S. workers; 3) improving education and training programs for U.S. children and underqualified workers; 4) improving health care; 5) providing more affordable housing for young and/or older, poorer U.S. residents; 6) improving the environment of the U.S. and making more productive use of natural resources; or 7) involving a request from an interested U.S. government agency. This decision provided good guidance for the national interest waiver petitioner as well as the adjudicating officer and seemed to signal an understanding of congressional intent.

The EB-2 Q&A appears to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. In fact, an entrepreneur who cannot qualify under EB-2, can also theoretically obtain labor certification for purposes of obtaining permanent residency under EB-3. The DOL, on the other hand, has always frowned upon an owner of an entity being sponsored for a labor certification. In order to obtain labor certification, the employer must establish that it has conducted a good faith test of the labor market and that there were no qualified US workers who were available for the position. The DOL has denied labor certification to both 100% and minority owners of companies who filed a labor certification on their behalf. See ATI Consultores, 07-INA-64 (BALCA Feb. 11, 2008); M. Safra & Co. Inc., 08-INA-74 (BALCA Oct. 27, 2008). The test for determining whether an employee closely tied to the sponsoring entity could qualify for labor certification was set forth in Modular Container Systems, Inc. 89-INA-228 (BALCA July 16, 1991) (en banc), where BALCA applied a “totality of circumstances” test to determine whether there was a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

An entrepreneur who may successfully obtain parole will most likely fail under the Modular Container Systems “totality of circumstances” test. ABIL suggests that USCIS consult with the DOL before issuing this guidance so that DOL be receptive to the USCIS’s new policy of encouraging entrepreneurs and liberally interpret Modular Container Systems, which are incorporated in 20 CFR §656.17(l). For example, if an entrepreneur who qualifies for parole and owns a minority state in the enterprise should still be able to obtain labor certification if he or she did not influence the recruitment, even if the entrepreneur may have been a founder or is on its board of directors.

In conclusion, quite independent of the parole rule, the proposed broadening of the National Interest Waiver should also similarly be applicable to entrepreneurs who have used existing nonimmigrant visa categories. This is explained in the Entrepreneur Pathways portal. Indeed, the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa. In order to provide viability to both the parole rule and existing policy supporting entrepreneurs, the National Interest Waiver ought to be broadened. Most importantly, entrepreneurs born in India and China should also be allowed to take advantage of the person of extraordinary ability category under EB-1. The EB-1 is current for these countries. It would be unviable for the beneficiary of an EB-2 National Interest Waiver born in India or China to wait for several years to obtain the green card. It is hoped that this administration and the next does everything in their power to attract foreign entrepreneurs.

Given the centrality of immigrant entrepreneurs to the American economy, it may come as a shock to many when they realize that, on an increasing number, immigrant entrepreneurs are going home. With the economic renaissance in India, China, Korea, Chile, Mexico and other traditional sources of immigration, while entrepreneurs continue to come to America, we are, it seems, no longer the only game in town. Faced with uncertain green card prospects and what appears as an unfriendly and intractable immigration system that questions their value rather than welcoming their talent or appreciating their contributions, immigrant entrepreneurs are having second thoughts. It is impossible to understand or appreciate the current entrepreneurial initiative without this foundation. It is therefore hoped that this administration and the next does everything in their power to attract foreign entrepreneurs to the United States.

 

Cora-Ann Pestaina

BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements

/2 Comments/in /by

Late last year, just in time to ruin the holidays for those affected, the Department of Labor (DOL) started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years (lulling practitioners into another false sense of security), the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary.

To provide some background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. The PERM regulations do not require the employer to state the offered salary in any of its recruitment. In its list of frequently asked PERM questions (FAQs) on the Office of Foreign Labor Certification’s website, question number 5 under the heading of “Advertisement Content” is asked and answered as follows:

Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

The Preamble to PERM Regulations, 69 Fed. Reg. at 77347 also discusses the elimination of the requirement that the wage offer must be included in advertisement.

In filing a PERM application, the employer, under 20 C.F.R. §656.10 (c), must certify to the conditions of employment listed on the Application for Permanent Employment Certification (1) “[t]he offered wage equals or exceeds the prevailing wage determined pursuant to §656.40 and §656.41” and (8) ‘[t]he job opportunity has been and is clearly open to any U.S. worker.” And 20 C.F.R. §656.24(b)(2) requires the Certifying Officer (CO) to make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Using these regulations as authority for some of its denials, the DOL, after acknowledging the fact that the employer is not required to list a wage in its advertisements, goes on to state that the employer’s indication of “Competitive,” “Depends on Experience (DOE),” “Negotiable,” “Other,” etc. is in fact an expression of a salary and that any discussion concerning wages must sufficiently inform applicants of the job opportunity outlined in the PERM application. The DOL claims that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. Incredulously, according to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claim that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market.

Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer’s job order for both professional and nonprofessional occupations must be placed with the State Workforce Agency (AWA) serving the area of intended employment for a period of 30 days. But one of the problems many employers face is with SWAs that require the employer to list an offered wage and to make a selection from a drop down menu under “Pay Comments” choosing from comments which include “DOE,” “Will Discuss with Applicant,” “Commission Only,” “Not Applicable,” etc. The DOL has been issuing denials in cases where, for example, the employer listed the offered salary as $0 or $1 in an effort to get past this requirement and then indicated “Will Discuss With Applicant” under the pay comments. As ludicrous as it is to suggest that any US worker would be deterred from applying for the offered position simply because the offered wage was listed as $0 – which obviously could never be the actual case – this is exactly what the DOL suggests in its denials.

The American Immigration Lawyers Association (AILA) did raise this issue with the DOL in one of its stakeholders meetings last year informing the DOL that many of its state job order systems, and many job search websites and other recruitment sources require the use of, or they automatically insert, the terms that are now the cause of the new denials. The DOL only agreed to review the issue and may possibly issue an FAQ in the future. But they declined to suspend further denials or reopen past denials.

Many motions to reconsider have been filed and remain pending. The Board of Alien Labor Certification Appeals (BALCA) has just issued a couple of decisions that will hopefully help shed light on how those pending motions should be decided. In Bahwan Cybertek, Inc. 2012-PER-01147 (Feb. 18, 2016) the employer filed a PERM application indicating that the offered wage was $99,500. The PERM was audited. The employer submitted copies of its SWA job order which showed that the employer had listed the minimum pay and the maximum pay as $1 per year. Under “Pay Details” the employer had indicated “Competitive Salary. Will be discussed with the candidate.” The CO denied certification finding that the job order listed a wage rate lower than the prevailing wage in violation of 20 C.F.R. §§656.10(c)(8) and 656.17(f)(7). In a request for reconsideration the employer stated that it normally does not list wages in its recruitment and the PERM rules do not require it but that the Massachusetts SWA’s online job order system asked for minimum and maximum pay for the advertised position and so the employer entered $1 so that the system would accept the posting but added the pay comments as clarification making it clear that the salary was not $1. The CO still found that the statements “competitive salary” and “will be discussed with the candidate” were “not demonstrably specific enough to overcome the potential chilling affect [sic] arising from advertising $1 as an annual salary.” The employer appealed to BALCA.

BALCA simply pointed out that the regulation at 20 C.F.R. § 656.17(f) provides that “[a]dvertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien” and that, by its own terms, this regulation only applies to advertisements in newspapers or professional journals, and does not regulate the content of SWA job orders.

But with regard to whether or not the job opportunity had been clearly open to any US worker as the employer attested to under 20 C.F.R. §656.10(c)(8), one of the grounds for denial being used in the slew of recent denials discussed above, BALCA confirmed that stating a wage rate below the actual wage offer for the job definitely calls into question whether the job opportunity is indeed open to US workers. However, BALCA found that in the instant case, the employer’s indication of a wage rate of $1 was obviously a placeholder based on a generic data field in the SWA job order and was clearly not intended to reflect the actual wage rate. BALCA found that that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the employer is offering a competitive salary and that the salary was subject to discussion.

Similarly, as in the recent denials, where an employer has indicated a salary of $0 and had indicated that the salary will be discussed with the applicant, no reasonable job seeker would have been deterred by that.

In another case, Global TPA LLC, 2012-PER-00847 (Feb. 18, 2016), the offered Project Manager position required 4 years of specific experience which the employer detailed on the ETA Form 9089. Upon audit, the CO discovered that the employer had advertised on a website, as one of the three additional forms of recruitment required for professional positions under 20 C.F.R. § 656.17(e)(1)(ii), indicating that the Project Manager position requires 4-5 years of experience. The CO listed this as one of its three reasons for denial. The employer filed a motion to reconsider but the CO upheld its denial and the case went up to BALCA. BALCA referenced its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously discussed here. BALCA pointed out that under Symantec the additional professional recruitment only requires documentation of recruitment for the occupation involved in the application and not recruitment for the particular job opportunity at issue. Therefore, the fact that the employer’s website posting stated 4-5 years of experience as opposed to 4 years of experience as listed on the PERM application did not violate the regulations.  In a footnote, BALCA pointed out that the CO in this case had only cited 20 C.F.R. §656.17(f)(6) as a ground for denial in regard to the discrepancy between the website posting and the ETA Form 9089 in regard to the experience required. BALCA pointed out that its decision is not an opinion on whether the website posting may have been in conflict with 20 C.F.R. §656.10(c)(8) which requires that the employer certify that the job opportunity has been and is clearly open to any U.S. worker.

In any event, even if BALCA declined, in that case, to state that the job opportunity was nevertheless clearly open to US workers, it doesn’t mean that the argument can’t still be made. Under Symantec, the additional forms of recruitment can represent real world alternatives and can advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. Therefore, when it comes to one of these forms of recruitment, an employer’s use of terms like “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” etc. does not take away from the employer’s advertisement of the occupation and is therefore not in violation of any PERM regulation. BALCA specifically stated in Bahwan Cybertek that no reasonable job seeker would have been discouraged from applying due to the use of such terms. And to state what is probably obvious, someone that would read such terms and be left so confused as to be deterred from applying is quite likely not qualified.

After its slew of denials starting late last year and the stream of motions to reconsider that must have resulted, the DOL’s ultimate stance on this issue remains to be seen. Anecdotal and unscientific evidence seems to indicate that they have stopped or slowed down the issuing of these types of denials.

Nevertheless, going forward, it would be wise to stay away from usage of any of the “problem terms” indicated above to the extent possible.