Tag Archive for: Request for Evidence

Cyrus Mehta

Requesting Premium Processing on a Downgraded I-140 Petition  

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By Cyrus D. Mehta and Kaitlyn Box*

In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications. Since the EB-3 Filing Date for India significantly overtook the EB-2 Filing Date, some beneficiaries approved EB-2 petition opted to “downgrade” by filing a new I-140 under EB-3. Generally, beneficiaries may still rely on the original Labor Certification when filing a downgraded I-140 and retain the priority date of the EB-2 petition, unless the job has drastically changed.

In previous blogs, we have discussed the nuances of filing a downgrade petition, and addressed some common questions that arise in this situation. One frequent source of questions is whether Premium Processing is available for downgrade petitions given that these I-140 petitions filed since October 2020 are still pending and have yet to be approved. Generally, USCIS will  not accept a case for Premium Processing unless it is filed with an original Labor Certification. Thus, beneficiaries whose Labor Certifications were filed with the original EB-2 petition likely cannot file a downgrade I-140 together with a Premium Processing request. Although USCIS might, in rare instances, accept a Premium Processing request made with an I-140 downgrade petition, it is more likely that the Premium request, or even the entire petition, will be rejected.

A strategy more likely to meet with success is filing the downgrade I-140 via regular processing, waiting USCIS to issue a receipt notice, and then request Premium Processing of the pending I-140. USCIS may still reject the Premium Processing request if it cannot match the pending I-140 to the previous file or retrieve the original Labor Certification. Even in the case of a rejection, however, the pending I-140 will be safe and subsequent Premium Processing requests can be filed, if desired. There are an increased number of Premium Processing requests from beneficiaries of downgraded I-140 petitions given that the EB-3 India Final Action Date has rapidly advanced. Under the July 2021 State Department Visa Bulletin, the EB-3 India Final Action Date is January 1, 2013. If the I-140 petition is approved when the Final Action Date is current for the I-140 petition, the beneficiary and family members can hope to have their I-485 applications approved although the USCIS has been approving them at a snail’s pace and may alarmingly not be able to use up all EB visas for this fiscal year. It should also be noted that the swifter approval of the I-140 petition does not speed up the processing of the applications for employment authorization or advance parole when the I-485 application remains pending.

Recently, however, we have seen some requests to upgrade I-140s to Premium Processing being repeatedly rejected on the ground that an original Labor Certification was no provided, despite other, similar Premium Processing requests being accepted. In an email inquiry placed to the USCIS Premium Processing address in response to one such case, our firm received a helpful response. An Immigration Services Officer  advised that Petitioners resubmit rejected Premium Processing requests and indicate on a brightly colored sheet of paper that USCIS has the original labor certification.  A more guaranteed method, according to the USCIS response, is to submit a copy of the original Labor Certification. Submissions lacking at least one of these documents are vulnerable to immediate rejection since the reviewing officer will not see a Labor Certification included. Although this was not part of the guidance we received, it would also be advisable to indicate the receipt number of the prior approved EB-2 petition which contains the original Labor Certification, and direct the USCIS to look for it in that petition.

Even if the Premium Processing request is accepted, there is always a risk that the USCIS might issue a Request for Evidence (RFE) even if the prior I-140 under EB-2 was approved. Note, though, that such an RFE could also be issued even if there is no request for Premium Processing, although there might be an incentive to issue the RFE if the officer cannot complete the processing within the mandated 15 days. Although RFEs have been seldom, the most common reason for an RFE is to request submission of evidence that the employer still has the ability to pay the proffered wage from the establishment of the priority date until the present, and up to the point of time that the beneficiary receives permanent residency.  If the employer’s current tax returns show losses and the beneficiary is not being paid the proffered wage,  Premium Processing should not be considered, and the I-140 can continue to remain pending,  until the employer is able to potentially overcome such an RFE.  Another reason for an RFE is that the prior SOC code that was designated at the time of the granting of the Labor Certification does not match with the SOC code that was indicated in the downgrade I-140 petition. This is not a valid basis for the USCIS to issue an RFE as the SOC code available for the occupation at that time has become obsolete. For instance, SOC Code 15-1031 for Computer Software Engineers, Applications is no longer in existence. It has now changed to SOC Code 15-1132 for Software Developers, which has again most recently changed to SOC Code 15-1252. This sort of RFE can be more easily overcome.

All of these issues should be carefully considered when requesting Premium Processing of a downgrade I-140 petition. Despite the issues that can arise when making a Premium Processing request of this kind, petitioners can help prevent rejections by following USCIS’ guidance and including a highly visible reference to the original Labor Certification, or a copy of the Labor Certification itself with the request. Submitting timely and thorough responses to any RFEs too helps to ensure that the petition will ultimately be successful.

(This blog is for informational purposes and should not be considered as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Isn’t Being Extraordinary More Than Enough?  There’s No Need for USCIS to Ask for a Prospective Benefit to the US

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By Cyrus Mehta and Patrick Matutina

We have previously blogged regarding The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010),as interpreted by the USCIS, has resulted in a two part test for Extraordinary Ability petitions (EB-1). In the first part of the test, the USCIS has to determine whether the individual has demonstrated “sustained national or international acclaim. However, even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Evidence to demonstrate “sustained national or international acclaim” – the first part of the test – could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

Post-Kazarian decisions have generally affirmed the two-part test and final merits determination analysis. Albeit at times seeming to nonetheless conflate the two tests in practice. (See Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) (criticizing the USCIS’s conclusion that a prize did not meet the evidentiary criterion of lesser nationally or internationally recognized prizes or awards of excellence” but nonetheless finding that the petitioner did not suffer prejudice from these errors as it made those errors with an eye toward the ultimate merits determination). Recently, however, a disturbing pattern has emerged that practitioners must vigorously push back against.

To reiterate, an individual whose achievements have been recognized in the field through extensive documentation, may obtain permanent residence in the United States under the employment-based first preference (EB-1) by establishing extraordinary ability in the sciences, arts, education, business or athletics. See INA § 203(b)(1)(A)(i). However, in addition to satisfying the provisions of INA § 203(b)(1)(A)(i), the individual must also show that she seeks entry to continue work in the area of extraordinary ability, and that her entry will also substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii).

As we have shown, voluminous case law and policy memorandum may assist us in interpreting the provisions of INA § 203(b)(1)(A)(i). Recent Requests for Evidence (“RFE”) received by this office, however, suggest that the newest brick in the current administration’s “invisible wall” may be to require petitioners to respond to INA § 203(b)(1)(A)(iii), which has heretofore been unmoored from any authoritative interpretation.

We are seeing RFEs requesting extensive documentation to establish how the beneficiary’s entry will substantially benefit prospectively the United States pursuant to INA § 203(b)(1)(A)(iii). Here is an example from a very recent RFE received in November 2019:

Documentation to establish that the beneficiary’s entry will substantially benefit prospectively the United States

 It must be shown how the beneficiary’s entry will substantially benefit prospectively the United States. The petition does not indicate that the beneficiary’s entry will substantially benefit prospectively the United States. Please submit evidence that the beneficiary’s entry will substantially benefit prospectively the United States. Evidence that may be submitted to satisfy this requirement includes, but is not limited to:

  •  Letters from current or prospective employers, or individuals who work in the beneficiary’s field;
  • Other evidence explaining how the beneficiary’s work will be advantageous and of use to the interests of the United States on a national level

 

When faced with such a request, how should a Petitioner respond? On first brush it may seem prudent to substantively respond to such a request. But responding in such a manner could lead one down a veritable “rabbit’s hole” with no exit given the lack of authoritative guidance on the matter. One “middle path” approach may be to substantively respond to a request for evidence of prospective benefit, albeit while navigating without a GPS, while simultaneously, and forcefully, arguing that such evidence is nonetheless not required as discussed further below.

A request to show “substantial benefit” at a national level would be more appropriate if the I-140 petition was filed requesting a “national interest waiver” of the Labor Certification Application requirement of EB-2 Petitions under INA §203(b)(2)(B)(i). Briefly, under the standard articulated in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if a Petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Such a conflation between the EB-1 criteria and the National Interest Waiver is clearly inappropriate. INA §203(b)(2)(B)(i) explicitly requires that the job offer and labor certification be waived if the foreign national will serve the national interest of the United States. INA §203(b)(1)(A) requires the foreign national to demonstrate that he or she is a person of extraordinary ability. In fact, the legacy Immigration and Naturalization Service determined over two decades ago that the regulations do not require the submission of any such evidence prospective benefit in relation to EB-1 Petitions. See letter from E. Skerrett, Chief, Immigrant Branch, Adjudications, INS (Mar. 8, 1995), reprinted in 72 Interpreter Releases 445–47 (Mar. 27, 1995) (“prospective advantage” may generally be assumed except in rare instances where an extraordinary foreign national’s field of work might somehow be detrimental to U.S. interests). Crucially, the regulations do not specifically define prospective advantage, and it has subsequently been interpreted very broadly. See e.g. Matter of Price, 20 I&N Dec. 953 (Assoc. Comm. 1994) (golfer of beneficiary’s caliber will substantially benefit prospectively the United States given the popularity of the sport). See Special Considerations Relating to EB-1 Cases, Adjudicator’s Field Manual Ch. 22.2, USCIS (November 27, 2019),  https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-6330/0-0-0-6423.html.  See also Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich 1994) (“the assumption [is] that persons of extraordinary ability working in their field of expertise will benefit the United States”). Moreover the USCIS Policy Memorandum, which invented the two-part test from its interpretation of Kazarian, is silent regarding how to interpret INA § 203(b)(1)(A)(iii). Therefore, the substantial benefit criterion is ordinarily met through the other two criteria under INA §§203(b)(1)(A)(i) and (ii). There is also no independent regulation implementing INA § 203(b)(1)(A)(iii). Indeed, 8 C.F.R. § 204.5(h)(5), while acknowledging that the EB-1 does not require a job offer, requires evidence that the foreign national is coming to the United States to work in the area of expertise, this is to meet INA §203(b)(1)(A)(A)(ii), and if this is met, then the person has also implicitly been able to demonstrate that they will prospectively benefit the United States. The RFE requiring evidence of prospective benefit to the United States through letters from employers and others invents a regulation in violation of the notice and comment requirement under the Administrative Procedures Act.

It remains to be seen if this indeed a new theatre in the current administration’s war on immigrants. However, practitioners should remain vigilant in their watch and continue to push back on such attempts to apply standards such as this, which are fundamentally ultra vires. Practitioners must continue to attempt to have USICS accept that the petitioner meets 3 out of the 10 criteria, and then fight USCIS under step 2 final merits determination, and finally reiterate that the substantial benefit criterion is ordinarily met through the other two criteria under INA §§203(b)(A)(i) and (II). Under a burden shifting approach, the Petitioner should be deemed qualified, and the burden should be on the Service to reject the Petitioner pursuant to INA § 203(b)(1)(A)(iii) based on specific and substantiated reasons. To do otherwise could allow the curse of Kazarian to continue to grow unchecked and untethered from legal principle.

Cyrus Mehta

Stopping H-1B Carnage

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In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.”

To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program.  The H-1B visa has become the visible symbol of an immigration program that is thought to no longer protect American jobs and favors the foreign worker. Whether this is factually true is beside the point – it is good for optics and in furtherance of Trump’s campaign slogan of America First.   It does not matter that H-1B visas help American firms remain globally competitive, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. The H-1B visa is the low hanging fruit that the administration uses for target practice by shooting out a Request for Evidence (RFE), which is often a prelude to the denial.

Consistent with his view of American First, 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 has hit the H-1B visa program the hardest. It has been 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. Despite the wage challenges, a well-crafted response can overcome the suspicion that an entry-level 1 wage cannot be sustained under the H-1B visa. Anecdotal evidence suggests that the USCIS is approving cases after a level 1 wage challenge, although at the same time the USCIS challenges  whether the occupation qualifies for H-1B classification. Therefore, winning the level 1 wage challenge may be a pyrrhic victory if the USCIS reads out the occupation from the H-1B law. It is necessary to not just overcome the level 1 wage challenge, but also the challenge as to whether the occupation in question qualifies for H-1B visa classification.

At first, the Trump administration focused its attack on programmers. On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part on computer programmers in the DOL’s Occupational Outlook Handbook (OOH) that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

It has now become evident that USCIS is not just challenging programmers, but relying on the OOH to attack other computer occupations, especially at the California Service Center. It does not matter whether the employer is paying a level 1 wage or higher.  For example, when challenging a Computer Systems Analyst, the USCIS uses the OOH as a basis to issue the RFE and then the denial. USCIS recognizes, in many unpublished AAO decisions, “OOH as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.” When justifying its challenge to an occupation, the USCIS cites the section in the OOH relating to education and training. For example, with respect to Computer Systems Analysts, it reproduces the following extract from the OOH (often underlining the parts USCIS thinks are relevant to support the decision):

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.

Education

Most computer systems analysts have a bachelor’s degree in a computer-related field. Because computer systems analysts are also heavily involved in the business side of a company, it may be helpful to take business courses or major in management information systems (MIS).

Some employers prefer applicants who have a Master of Business Administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate.

Although many analysts have technical degrees, such a degree is not always a requirement. Many systems analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Some analysts have an associate’s degree and experience in a related occupation.

Many systems analysts continue to take classes throughout their careers so that they can learn about new and innovative technologies and keep their skills competitive. Technological advances come so rapidly in the computer field that continual study is necessary to remain competitive.

Systems analysts must also understand the business field they are working in. For example, a hospital may want an analyst with a background or coursework in health management. An analyst working for a bank may need to understand finance.

After citing the OOH section, the USCIS typically asserts that although a bachelor’s degree is often sufficient for computer systems analyst position, the OOH does not specify a specific educational background required for this occupation. USCIS then goes on to conclude that as the requirements appear to vary by employer as to what course of study might be appropriate or preferred, a Computer Systems Analyst cannot qualify for the H-1B visa.

A decision based on the OOH ought to be challenged. It is not appropriate to treat the OOH as the gospel truth, without regard to the evidence that was submitted by the petitioning employer, and to twist the meaning of the words in order to justify a denial.

The regulations define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations go onto provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation (and if the USCIS can underline what it believes is relevant, so will this author!):

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • 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;
  • The employer normally requires a degree or its equivalent for the position; or
  • 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.  See 8 CFR §214.2(h)(4)(iii)(A).

It is clear from the plain meaning of these regulations that there is no requirement that a bachelor’s degree is always a requirement. Nowhere in the regulation does it require that a bachelor’s degree must “always” be a minimum requirement.  In fact, if the OOH uses terms such as “most” or “typically” or “common”, that should meet the requirement of the regulations.

USCIS also selectively cites portions from the OOH, and conveniently neglects to cite this concluding important paragraph in the education and training part of Computer Systems Analysts:

Systems analysts must understand the business field they are working in. For example, a hospital may want an analyst with a thorough understanding of health plans and programs such as Medicare and Medicaid, and an analyst working for a bank may need to understand finance. Having knowledge of their industry helps systems analysts communicate with managers to determine the role of the information technology (IT) systems in an organization.

The employer may rely on this section in the OOH to demonstrate that the computer professional is working in the niche business field, which could be health care or computer security. Therefore, the systems analyst would also need to have a thorough understanding of the business field, such as finance, besides being able to perform the generic duties of a systems analyst. By emphasizing the need for the computer systems analyst to be performing in a niche business area, the employer may have more of a legal justification for requiring a specialized degree in the field. When relying on prong 4 under 8 CFR §214.2(h)(4)(iii)(A), it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex. It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. 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 AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

The AAO in an unpublished decision in 2006 reversed a denial of an H-1B petition that was filed by an action film entertainment company on behalf of a foreign national who would be employed as a Film and Video Director. Although this is not a precedential decision, it can be used as a template to respond to a challenge when the USCIS relies on the OOH to deny that a specialty occupation is classifiable under the H-1B visa. In reversing the denial of the H-1B petition by the California Service Center, the AAO listed in great detail the foreign national’s proposed duties as Film and Video Director. The duties included interpreting the screenplay, communicating with actors and camera personnel, development of script with the producer, selecting locations, work out all camera angles, directing the actors and directing performance of all on-camera talent, to name a few.

The AAO concluded that despite the fact that the USCIS made reference to the OOH not mentioning that a baccalaureate education in a specific specialty is normally the minimum for entry into such positions, this position was sufficiently complex to require a bachelor’s degree. The AAO, therefore, relied on the 4th prong of the regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), analyzing that the position was so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The relevant extract from the AAO’s decision is worth noting:

Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications. Motion- capture is an area of expertise that requires the use of specialized equipment and personnel. Further, the beneficiary is involved in virtually all areas of project production and development, including the editing of the final project. Under these circumstances, the petitioner has established the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)

The AAO’s rejection of the official job description in the OOH is salutary, and petitioners should continue to convince the USCIS, and the AAO if there an appeal, that completely relying on the OOH is inappropriate, and it is also necessary to consider the complexity of the duties described by the petitioner in the H-1B petition. The AAO decision is striking because the OOH entry for the occupation of film and video director was more equivocal than computer systems analyst with respect to employers requiring a bachelor’s degree in the occupation. Petitioning employers should take great pains in fleshing out the duties of the position when filing an H-1B petition in showing that they are different from the standardized duties in the OOH. In the event that the OOH does not state that the occupation in question always requires a bachelor’s degree, it is imperative that the employer be able to justify that the position is complex and specialized to require a bachelor’s degree. It would also be helpful for the employer to show that it has hired others in the past with the same degree requirements, provide industry articles and other information about the minimum entry requirements into these occupations as well as descriptions of US college programs leading to degrees in the specialty occupation.

If an industry or occupation does not always require a bachelor’s degree, as confirmed in the OOH, and the employer is unable to establish that the position is more specialized and complex than the industry standard, the H-1B petition may fail. For instance, an H-1B petition filed on behalf of a violinist by a symphony orchestra did not succeed as the employer was unable to establish that the position always, rather than usually, required a bachelor’s degree. See Louisiana Philharmonic Orchestra v. INS, 44 F.Supp, 2d 800 (E.D. Lou. 1999); denial upheld after remand 2000 U.S. Dist. LEXIS 3331 (Mar. 18, 2000). Therefore, it is important to demonstrate that the duties are more specialized and complex than the norm, while keeping in mind that the argument should also be consistent with the fact that an entry-level wage, if that is the case, can also justify such duties.  Also, a “specific specialty” does not mean a degree in only one field.  A specialty occupation may justify several common or related degree fields.  If the OOH adds a few degree fields to a description, that does not mean than the position no longer qualifies for H-1B classification. Even when the minimum requirements are in two disparate fields, such as philosophy and engineering, then, as stated in an unpublished AAO decision, the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the particular position such that the ‘body of highly specialized knowledge’ is essentially an amalgamation of these different specialties.”

In the event that the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office (AAO). Once the appeal is filed, the USCIS Service Center which denied the petition has 45 days within which to conduct an initial field review and decide whether to treat the appeal as a motion to reopen and/or reconsider and approve the petition; or forward the appeal and the related record of proceedings to the AAO. If the AAO denies, the denial can also be challenged in federal court. If USCIS seeks to reinterpret H-1B provisions in light of the Buy American Hire American EO resulting in denials, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. There is nothing in the law or the regulations that clearly indicate that the government can wholesale deny H-1B classification for an occupation just because the OOH indicates that most employers, rather than all employers, require a bachelor’s degree. Similarly, there is nothing in the INA that suggests that an H-1B visa petition cannot be approved solely because the prospective H-1B worker will be paid an entry level wage. Indeed, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. The Trump administration cannot read out entire occupations from the H-1B law based on slavish reliance of the OOH. If the AAO does not relent, then perhaps a federal court will be able to stop the H-1B carnage.

Cyrus Mehta

H-1B Entry Level Wage Blues

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Those who filed under the FY 2018 H-1B visa lottery and were selected must have been pleased. As premium processing was eliminated, the approvals have just started coming in this summer. Cases that are not readily approved receive Requests for Evidence (RFE). Many of the RFEs object to the H-1B worker being paid an entry level wage.

The RFE attempts to trap the employer. It challenges whether the Labor Condition Application, if it indicates a Level 1 wage, appropriately supports the H-1B petition. According to the DOL’s prevailing wage policy guidance,  a Level 1 (entry) wage is assigned to positions that require a basic understanding of the occupation, and such an employee performs routine tasks that require limited, if any, exercise of judgment. Such an employee also works under close supervision and receive specific instructions on required tasks and results expected.

The RFE – which meticulously parrots the Level 1 duties from the DOL’s wage guidance – then asserts that the position described in the H-1B petition appears to be more complex than a position that is assigned a Level 1 wage. Therefore, the RFE asserts that the employer has not sufficiently established that the H-1B is supported by a certified LCA that corresponds to the petition.

Employers who receive such an RFE should not panic. Just because the position is assigned an entry level wage does not necessarily mean that the position cannot qualify as an H-1B specialty occupation. Moreover, even an occupation assigned with an entry level wage can be complex and thus require a bachelor’s degree in a specialized field. The DOL’s worksheet within its wage guidance indicates that if the occupation requires a bachelor’s degree and up to two years of experience, it will be assigned a Level 1 wage to a corresponding Job Zone 4 occupation. In the event that the job requires skills, would that bump up the wage to Level 2?  Unless the job requires skills that are not encompassed in the O*NET tasks, work activities, knowledge, and Job Zone examples for the selected occupation, the position can still remain in Level 1, according to the DOL’s wage guidance.

Hence, the corresponding tasks of an occupation requiring a bachelor’s degree and up to two years of experience can still be complex, even if the wage remains at Level 1 and the position requires supervision. For example, it would be difficult for the USCIS to argue that an entry level doctor, lawyer or architect cannot qualify for H-1B visa classification. These occupations need underlying degrees in the specialty as a minimum for entry into the profession. Even if the lawyer is closely supervised, he or she still needs to perform complex tasks relating to the underlying Juris Doctor degree. The same logic ought to apply to other occupations that are readily classifiable under the H-1B visa such as engineers or computer systems analysts. The job duties at any wage level correspond to the knowledge that is acquired through a specialized degree such as a degree in engineering or computer science.

Indeed, the wage level assigned to the occupation ought not determine whether it is eligible for H-1B visa classification or not. If the position does not require a minimum of a bachelor’s degree for entry into the occupation, such as a plumber or welder, then even a Level 4 wage assignment would not be able to salvage this occupation for purposes of H-1B classification.

In  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questioned whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.  While this policy memorandum only applied to entry level computer programmers, practitioners are now seeing that any occupation that is assigned a Level 1 wage, even if it is not related to computer programmer, gets an RFE. It may be worth noting that even an entry level computer occupation should be eligible for H-1B classification if it can be demonstrated that the skills necessary to perform the duties require the minimum of a bachelor’s degree.

President Trump’s Executive Order on Buy American Hire American may also be responsible for this trend, which provides in relevant part:

In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries

Even if the administration has not been able to promulgate new regulations to achieve its stated goals under the executive order, these RFEs are indirectly implementing President Trump’s “Buy American Hire American” policy by thwarting H-1B petitions filed for entry level positions. While H-1B petitions with Level 1 wages have run into trouble prior to the Trump administration, RFEs are now being issued more frequently whenever a Level 1 wage has been noticed. Immigration attorneys must fight back on behalf of their clients. Otherwise, the government could potentially exclude entry-level professionals from using the H-1B visa, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. Paying such an entry wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision. Another argument that can be made is that if an employer is forced to pay a legitimate entry level worker on an H-1B visa at a wage level higher than the entry level wage, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer is forced to pay a higher wage to an H-1B worker at the entry level, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is as a result of reading out H-1B visas from the INA for entry level workers in acknowledged professions, it could also have the effect of artificially distorting wages that could ultimately hurt competitiveness. If the wage paid is well above the minimum wage  in Level 1, but slightly under Level 2, and at times there is at least a $20,000 or $30,000 difference between Level 1 and Level 2, then that too can be used to argue that the higher wage being paid is commensurate to the more complex duties in the H-1B petition, despite the RFE asserting that the duties are basic, even if this higher wage is still within Level 1.

There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. All that is required is for the petitioning employer to demonstrate that the proffered position requires the “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.”  INA §214(i)(l).  The regulations further define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

  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.  See 8 CFR §214.2(h)(4)(iii)(A).

All of the criteria in 8 CFR §214.2(h)(4)(iii)(A) suggest that the bachelor’s degree is the minimum requirement for entry into the occupation or for purposes of performing the duties of the position. However, if one is relying on prong 4 to establish H-1B eligibility because it is unusually complex or specialized, the AAO in an unpublished decision has noted that this would create an issue of credibility if the LCA only identifies a Level 1 wage. Therefore, practitioners should be prepared to either assert that the duties can be specialized and complex even if a Level 1 wage is being paid, or alternatively, argue under prongs 1, the first part of prong 2 or prong 3. In a different decision, the AAO recognized that a Level 1 wage in certain occupations, such as doctors or lawyers, would not preclude a finding that they qualified as specialty occupations. Of course, if the position required more than 2 years of experience, then it will be harder for the employer to argue, if not impossible, that an entry level wage was justified. On the other hand, if the beneficiary was demonstrating possession of a degree through work experience, it should be carefully explained that this experience is not part of the job requirement, but is being used by the beneficiary to obtain the equivalent of a specialized degree through training or work experience.

Lawyers must use every argument in their legal arsenal to overcome RFEs intending to deny H-1B petitions that contain a Level 1 wage, and if there is a denial, to seek either administrative or judicial review. The law did not intend to impose a Catch-22 on employers who legitimately hire H-1B workers for entry level positions. If the employer argues that the duties are routine and comport to the Level 1 wage definition then the USCIS will play “gotcha” by asserting that the occupation does not qualify for H-1B classification. If, on the other hand, the employer argues that the duties are complex and specialized, then the USCIS will likely continue to delight in playing “gotcha” by asserting that the LCA does not correspond to the H-1B petition. There is a way to avoid this trap.  An employer can demonstrate that routine entry level duties that still need to rely on skills acquired from a specialized bachelor’s degree program would qualify the occupation for H-1B classification. Alternatively, an employer may also be able to demonstrate that certain duties can be complex and specialized in occupations even at an entry level.  The employer must choose the best argument based on the specific occupation being challenged and facts of the case.

There was a time when obtaining an H-1B visa was considered routine and easy. Not so any longer.