Tag Archive for: preponderance of the evidence

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

The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions

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USCIS’ current ferocious attack on H-1B petitions has been discussed here, here and here. Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every logical, rational, legal argument presented in response to one of the USCIS’ Requests for Evidence (RFE) but that it appears that no argument is too baseless for USCIS to present when issuing a denial of an H-1B petition. Case in point is USCIS’ rejections of expert opinions presented to bolster an employer’s argument that an H-1B position is classifiable as a specialty occupation.

As a reminder, in order to hire a foreign worker in a specialty occupation under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A)

After USCIS issued its first wave of attack on H-1B petitions filed and selected under the FY 2018 H-1B visa lottery claiming that any position where the H-1B worker would be paid an entry-level (Level 1) wage did not appear to be a specialty occupation, previously blogged about here, this groundless claim was met with mass pushback. Without a legal leg to stand on, USCIS has largely circumvented the issue of the wage levels (although still denying some petitions on that basis) by finding ways to deny the H-1B petition on a claim that the proffered H-1B position simply fails to qualify under any of the specialty occupation prongs listed in 8 CFR 214.2(h)(4)(iii)(A). In doing so, USCIS has been rejecting expert opinion letters written by qualified experts expounding on how and why the proffered position qualifies as a specialty occupation. The arguments presented in USCIS’ rejection of these expert opinions are quite maddening.

In an effort to demonstrate that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position under prongs 1, 2 and/or 4 of 8 CFR 214.2(h)(4)(iii)(A), H-1B employers quite frequently solicit the opinion of an expert. This expert is usually a college professor with a rich background in the specific specialty area, who is well-experienced in reviewing and evaluating academic and experience qualifications; and who has had an opportunity to observe and compare the abilities of numerous talented students in the specialty fields, and to analyze the ways in which the educational backgrounds of these students have been applied in the professional industry. Typically, this expert has also offered opinions and analyses of the academic and professional credentials of candidates in connection with university admissions and employment positions. The expert is usually also someone who has been engaged in the preparation of equivalency evaluations and position evaluations, primarily for use with connection to immigration-related procedures, for many years, and has prepared hundreds, sometimes over 1,000 such evaluations. Accordingly, the expert is typically someone well positioned to opine on whether or not a proffered position, in his/her particular specialty field, is a specialty occupation. Pre-Trump, USCIS gave such expert opinions the respect they deserved.

However, USCIS now seeks to discredit these opinions and what’s most frustrating are the rejections reasons presented. Here are a few that this author has had the opportunity to review:

  • The professor did not base his opinion on any objective evidence but instead restated the proffered position as provided by the employer;
  • The professor’s opinion is not supported by citations of research material;
  • The professor did not rely on a specific study of the employer’s organization. There is no evidence that the professor knew more about the proffered position than what the employer provided. There is no indication that the professor visited the employer’s business, observed its employees, interviewed them about the nature of their work, or documented the knowledge that they apply to their jobs.
  • The professor’s opinion does not relate the professor’s conclusions to specific, concrete aspects of the employer’s business operations so as to demonstrate a sound factual basis for the professor’s conclusions about the educational requirements for the proffered position.
  • Given the professor’s limited review of the duties of the position, based largely on the job descriptions furnished by you, USCIS gives less weight to the professor’s opinion.
  • It was held in Matter of Caron International, Inc. 19 I&N Dec. 791 (Comm 1988) that legacy INS, now USCIS, may in its discretion use advisory opinion statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information, or is in any way questionable, USCIS is not required to accept or may give less weight to that evidence.

With some of the reasons for rejection of an expert opinion, USCIS doesn’t make it clear whether they’re expressing doubt as to whether the duties of the proffered position will actually be performed as stated, i.e. whether they think the expert is relying on facts they find not credible, or whether they’re challenging the professor’s overall credibility as an expert. In any event, whatever standard is presently being used to reject the expert opinions, it is not the preponderance of the evidence standard.

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 their claim is true. USCIS’ recent denials rejecting expert opinions show that this standard is surely not being applied. As an expert, a professor may review the job duties of the proffered position and formulate his opinion based on his expert knowledge of the specialty field, which knowledge would have been explained at length in his opinion letter. The expert need not conduct a specific study of an employer’s organization. He need not visit an employer’s business or observe its employees. His expertise is typically set forth in his opinion letter and he need not provide the USCIS with copies or citations of research material.

Under the Federal Rules of Evidence, which are not binding on H-1B adjudications but may be a useful analogy, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Federal Rules of Evidence (FRE) Rule 702, https://www.law.cornell.edu/rules/fre/rule_702. Moreover, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FRE Rule 703 https://www.law.cornell.edu/rules/fre/rule_703. Thus, even under the Federal Rules of Evidence, first-hand knowledge is not necessarily required even if the expert were testifying in federal court!  An expert can legitimately have an opinion about “facts or data in the case that the expert has been made aware of”, (such as the job duties of a proffered H-1B petition) not merely those which he has “personally observed”.  Immigration proceedings don’t follow the Federal Rules of Evidence, but rather the rules of evidence ought to be more relaxed, not stricter!

So why is USCIS suddenly stretching to find fault with these expert opinions? The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the Administrative Appeals Office (AAO) held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue. In that case, the AAO specifically pointed out that the director did not question the credentials of the experts, take issue with their knowledge or otherwise find reason to doubt the veracity of their testimony.  But when it comes to the denials of H-1B petitions, it is all too easy to claim doubt, to take issue with the expert’s knowledge and to coolly dismiss the expert opinion.

So are expert opinions still worth it? I would argue that they are. First, H-1B adjudications are still haphazard. There is always a chance that the opinion may be accepted. With the submission of any expert opinion it might be beneficial to include an argument on why the opinion ought to be accepted reminding USCIS of the applicable standard. While in most cases it may not benefit the H-1B employer or beneficiary in the short run, H-1B practitioners must continue to fight back. We cannot go gentle into that good night. A rejection of the expert opinion would lead to a conclusion that USCIS is setting a standard for expert opinions that is even higher than the Federal Rules of Evidence and that would contravene the applicable preponderance of the evidence standard. These denials need to be appealed to the AAO. If the AAO denies, the denial can also be challenged in federal court. In Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1180-81 (C.D. Cal. 2006) the federal court reversed the Administrative Appeals Office (AAO) where it failed to address expert affidavits and other evidence that a human resource manager position was sufficiently complex and rejected the H-1B because it was a small company.  The court held that the AAO abused its discretion when it did not take into account the expert opinion evidence presented by the petitioner to prove that the position required a broad range of skills acquired through a four-year university degree. It is only through continued pushback that these erroneous denials will come to an end.