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Studying for the H-1B: USCIS Questions the Business Administration Degree

November 10, 2015/0 Comments/in Blog/by Michelle S. Velasco

Since writing last year on the challenges facing employers who wish to hire H-1B workers for uncommon specialty occupations, we have seen the U.S. Citizenship and Immigration Services (USCIS) present a novel way to push back on H-1B filings: by challenging whether the beneficiary’s degree is in a field related to the specialty occupation. This has especially been rampant in cases where the minimum requirement is a business administration degree.

To recap, the onus is on 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.” Immigration and Nationality Act (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:

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).

Two recent cases provide insight into how the USCIS is interpreting the above statute and regulations. The first was a non-precedent decision from the USCIS Administrative Appeals Office (AAO) dated April 7, 2014 upholding the denial of the H-1B petition of an IT solutions company for a “Project Compliance Analyst.” The petitioner filed its Labor Condition Application (LCA) for the occupational category “Management Analysts” (OES/SOC Code 13-1111.00), with a Level I prevailing wage rate. The position’s minimum qualifications called for a bachelor’s degree in business administration or a related field and two years of project management or management consulting experience. The AAO did not find that the position is a specialty occupation, and also noted that even if it had ruled differently, there was insufficient evidence to demonstrate that the beneficiary met the minimum requirements of the proffered position.

The primary issue in the case was whether the petitioner’s requirement of a bachelor’s degree in business administration or a related field met the requirements of a specialty occupation. The petitioner had argued, using an AILA memorandum dated April 4, 2012 and addressed to the USCIS director, that a bachelor’s degree in a specific specialty is not required if the petitioner satisfies one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A). The AAO rejected AILA and the petitioner’s interpretation and reiterated that USCIS has always interpreted the regulations in harmony with the statute, meaning that the four prongs provide supplemental criteria “that must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty occupation.”

The first step in the AAO’s analysis is determining if the degree is in a specific specialty that is directly related to the proffered position. Specialties that are closely related meet the “degree in the specific specialty (or its equivalent)” requirement of INA § 214(i)(l)(B) easily. The AAO’s example of closely related specialties is chemistry and biochemistry where the body of highly specialized knowledge would be essentially the same. On the other hand, when the minimum requirements are in two disparate fields, such as philosophy and engineering, then the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the position such that the ‘body of highly specialized knowledge’ is an amalgamation of the different specialties.” The AAO also said it would find a specialty occupation in a case where the job duties and requirements are a combination of a general bachelor’s degree and experience such that both INA §214(i)(l)(A) and (B) are satisfied.

But the statute and regulations allow for the minimum requirements to be a bachelor’s degree in a specific specialty or its equivalent. When relying on a degree that is not a single specific specialty, the employer will have to demonstrate that the position is a specialty occupation by meeting one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A). And what this case teaches us is that the USCIS no longer views the business administration degree, without more, as being a degree in a specific specialty.

The petitioner here found itself having to prove that it meets at least one of the criteria listed in 8 CFR §214.2(h)(4)(iii)(A). To meet the first prong (a bachelor’s degree or higher in a specific specialty or its equivalent is normally the minimum requirement for entry into the position), the petitioner cited the U.S. Department of Labor’s Occupational Outlook Handbook (“OOH”) entry for Management Analysts, specifically the minimum requirements for the field:

A bachelor’s degree is the typical entry-level requirement for management analysts. However, some employers prefer to hire candidates who have a master’s degree in business administration (MBA)… [M]any fields of study provide a suitable education because of the range of areas that management analysts address. Common fields of study include business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English.

The AAO was not convinced by this argument. In an ungenerous reading of the OOH’s entry for the position, the AAO said that because the OOH stated that bachelor’s degrees are typical did not insinuate that they are always required for the position. Moreover, the AAO found that because the OOH lists many disparate fields that Management Analysts practice in (business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English), it could not conclude that this occupational category is one that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in a specific specialty as required by INA § 214(i)(l) and 8 CFR § 214.2(h). The takeaway lesson here is to be careful when relying on the OOH when there is no specific specialty entry field for the occupation because the AAO will interpret the degree requirement as too general and not specific enough for a specialty occupation.

Unfortunately for the petitioner in this case, the AAO was not swayed by evidence that the position met the other three prongs (sample ads submitted were not in parallel positions among similar organizations (strike for prong two), petitioner could not argue that it normally requires a degree for the position since it was a newly created one (strike for prong three), and the job duties were too general for the AAO to surmise that the position is so specialized and complex that knowledge required to perform the duties is usually associated with getting a bachelor’s or higher degree (strike for prong four)). The petitioner’s arguments about the complexity of the position was also hurt by the fact that its Level 1 wage rate on the LCA – a wage rate associated with entry level positions. If an employer wishes to make the argument that the position is a specialty occupation because it is complex and unique, it cannot then only pay entry level wages. Thus, in this case where a business administration degree was the minimum requirement, the case was denied because the USCIS is not convinced a business administration degree was in a specific enough specialty and the petitioner could not demonstrate how the position met one of the prongs of 8 CFR §214.2(h)(4)(iii)(A).

In a second recent case, the USCIS again questioned whether the minimum requirement was in a specialty related to the occupation. The H-1B petition was filed by a home health care provider for a Deputy Controller, with a finance degree as the minimum requirement. Irish Help at Home LLC v. Melville, Case3:13-cv-00943-MEJ (N.D. Ca. Feb. 24, 2015). As in the case discussed above, the OOH profile for the relevant occupational category, Financial Managers (SOC/OES Code 11-3031.00), listed “a bachelor’s degree in finance, accounting, economics, or business administration” as the degrees often required for financial managers, but that “many employers now seek candidates with a master’s degree, preferably in business administration, finance, or economics.” Despite requiring a bachelor’s degree in finance or a related field (which the beneficiary readily met with her Finance degree), the Court upheld the denial, not convinced that the proffered position is a specialty occupation because even a general purpose degree like a bachelor’s in business administration would have adequately prepared a candidate for the position, thus undermining the petitioner’s assertion that the position required a degree in a specific specialty. So it would seem again that the business administration degree, without more, is too general to be sufficient as the minimum requirement for an H-1B specialty occupation. It would behoove the petitioner to provide even more evidence that the position is a specialty occupation by arguing how it meets at least one of the other prongs in 8 CFR §214.2(h)(4)(iii)(A). And it is worth noting that in this case also, the petitioner argued that the position was complex and unique but this was undermined by its classification of the position at the Level 1 wage rate in the LCA.

Elsewhere, anecdotal evidence has confirmed that the USCIS continues to use Requests for Evidence (RFEs) to question whether business administration degrees are directly related to the proffered position. As an example, an IT services and software solution company filed a petition for a systems analyst classified in the Computer Systems Analyst occupational category (SOC/OES code 15-1121.00). The USCIS issued an RFE questioning how a bachelor’s degree in business administration is related to the field. The RFE cited case law, specifically Matter of Ling, 13 I&N Dec. 35 (Comm. 1968), to point out that “business administration” is a general term for professional and non-professional activities, a business administration degree would be insufficient to qualify the degree holder as a member of the professions, “unless the academic courses pursued and knowledge gained is a realistic prerequisite to a particular occupation in the field of business administration in which he is engaged or plans to be engaged.” This should give pause to petitioners and attorneys alike. Whereas before petitioners may have obtained approvals for holders of business administration degrees in the IT sector, now their minimum requirements will be questioned, and they will have to show (1) how business administration is a degree related to the IT position, and (2) how the beneficiary’s business administration degree courses earned him or her knowledge that was a realistic prerequisite to the specific occupation. The USCIS has even questioned in a different case how a business administration degree is related to the position offered: CEO of a small company.

Through these recent cases and RFEs, USCIS has again found a way to strike back against H-1B employers, this time by focusing on beneficiaries with business administration degrees. While degrees in business administration, especially at the masters level, are considered specialized in their own right like law or medicine, and are routinely sought by employers, the USCIS’s attitude is not in keeping with the real world. USCIS is no longer accepting at face value that a business administration degree would prepare an individual to perform the duties of positions in fields such as business management, systems analysis, financial management, and management analysis. This would also adversely impact entrepreneurs who are petitioned through their own startups, even though an MBA program equips one with the specialized knowledge and skills to be an entrepreneur. USCIS’s skeptical attitude toward the business degree also runs counter to its Entrepreneur in Residence policy, which is has actively promoted in recent years.

When the candidate holds a business administration degree, employers and attorneys should consider whether to provide detailed job duties to demonstrate the complexity of the position, explain how the degree is directly related to the position, and perhaps obtain an evaluation of the position and degree requirements from a professor or official with authority to grant college-level credit for training/experience in the specialty at an accredited college or university. And when the minimum requirements are in disparate fields, the employer should strive to explain clearly how each field is related to the position. And, further, if the argument is made that the position is complex and unique, employers should offer an appropriately mid- to high-level wage. Overall it appears USCIS has unfortunately placed a target on the business administration degree and employers should beware of nasty RFEs and even denials.

Federal Court Reverses Unreasonable H-1B Denial For Market Research Analyst

March 27, 2012/0 Comments/in Blog, uncategorized/by Cyrus Mehta

Employers who file perfectly bonafide H-1B petitions for certain occupations face unreasonable denials from the USCIS. One H-1B occupation that is especially vulnerable to a denial is Market Research Analyst. The USCIS’s rationale for the denial is that the occupation must require a degree in the actual position and not in closely related fields. Thus, even if it is acknowledged that a Market Research Analyst requires a degree in closely related fields such as business, marketing, economics, sociology or psychology, but not specifically in market research analysis, that can provide a basis for the USCIS to arbitrarily deny the H-1B petition. There is clearly no requirement that the specialized degree for entry into the occupation needs to be in a single academic discipline. This may be true for occupations such as law or medicine, but if the USCIS applies such narrow criteria, a lot of occupations will not qualify for the H-1B visa.

In Tapis Int’l v. INS, 94 F Supp. 2d 172 (D. Mass 2000), the beneficiary was sponsored for H-1B classification as a showroom manager The petition was denied because the employer could not demonstrate that the position required a degree in showroom management, although the position required a degree in business administration, marketing or related field as well as additional training or experience in the field of interior design. In that case, the court reversed the denial on the ground that such a narrow agency interpretation would preclude any position from satisfying the “specialty occupation” requirements where a specific degree is not available in that field.

Yet, the USCIS continues to use this faulty interpretation in denying H-1B petitions. This is precisely what recently happened to an employer who sought H-1B visa classification for a foreign national in the specialty occupation of Market Research Analyst who had a degree in marketing and finance. In Residential Finance Corporation v. USCIS, 2012 U.S. Dist. LEXIS 32220, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio (Eastern Division) chided U.S. Citizenship and Immigration Services (USCIS) for denying an H-1B petition to a market research analyst with a bachelor’s degree in closely related fields.

The issue before the court in Residential Finance Corporation was whether USCIS was incorrect in concluding that there was not a”specialty occupation” involved. The court noted that a specialty occupation is one that requires 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. A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor’s Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance. The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

“Perhaps most bewildering is that Defendant rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record,” the judge said.

Judge Frost continued: “Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decision making. Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.”

The judge pointed out that USCIS expressly admitted “inexplicable errors” in its briefing, such as references to the wrong sections of the OOH, and that the agency’s decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested. Instead, he said, they constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.” If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, “it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning.” Noting that the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position, Judge Frost said that USCIS had ‘ignore[d] the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

Judge Frost concluded that USCIS failed to meet the “fundamental threshold for rational decision making and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors.” He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered that USCIS grant the petition and change the beneficiary’s status to H-1B nonimmigrant.

Employers and their attorneys should use these decisions to advocate for their clients in case the USCIS absurdly asserts that the position does not require a degree in a single academic discipline. INA § 214(i) defines a specialized occupation as requiring “(A) theoretical and practical application of a body of specialized knowledge; and (B) 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.” While it is true that INA § 214(i) requires a bachelor’s degree in a specific specialty for the position to qualify under the H-1B visa classification, it should be argued that this section does not restrict it to a degree in a single specialty. For instance, a position for a computer programmer analyst could require a bachelor’s degree in specialties such as computer science, management information systems, mathematics, engineering or closely related fields. All of these specialties could qualify a person for this specialty occupation. Congress could not have intended that INA § 214(i) be restricted to a single specialty, namely, computer science, and preclude the demonstration of other specialties, such as mathematics or engineering disciplines, that could also qualify a nonimmigrant for the specialty occupation of computer programmer analyst.

If your case is denied, do not lose hope. You can always litigate a good case in federal court and try to get the same favorable outcome as in Residential Finance Corporation and Tapis International.

THE PREJUDICE CAUSED BY SUMMARY REMOVAL AFTER VISA WAIVER ADMISSION: WHAT THE THIRD CIRCUIT MISSED IN VERA AND BRADLEY

March 12, 2012/0 Comments/in Blog/by David Isaacson

In its decision earlier this month in the case of Vera v. Attorney General of the U.S., the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver. This second argument, similar to one made by the en banc Seventh Circuit in Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010), appears to be based on a misunderstanding regarding the consequences of the different types of summary removals that can occur under the VWP.

Additional background details regarding the VWP, as well as regarding the original decision by the Seventh Circuit in Bayo (preceding the en banc decision relied upon by Bradley), are available in a March 23, 2009 article by this author on our firm’s website. For present purposes, it suffices to note that VWP entrants are required by statute, as noted in Vera and its predecessors, to waive their rights to contest removal other than on the basis of an application for asylum, or similar relief from removal based on the threat of persecution or torture. If a VWP entrant who has waived these rights is found inadmissible at the time of applying for admission, or is later found to be deportable, he or she may be summarily removed without a hearing, absent an application for asylum or related relief. There are, however, important differences between the consequences of summary removal upon initial application for admission under the VWP, and summary removal after admission under the VWP.

The procedures regarding determinations of inadmissibility and deportability under the VWP are set forth in the regulations at 8 C.F.R. § 217.4(a)-(b), available online from the Government Printing Office. The provision regarding “Determinations of inadmissibility” at 8 C.F.R. § 217.4(a) addresses the procedure by which “[a]n alien who applies for admission under [INA § 217], who is determined . . . not to be eligible for admission under that section or to be inadmissible to the United States . . . will be refused admission into the United States and removed.” 8 C.F.R. § 217.4(a)(1). Relevant here, 8 C.F.R. § 217.4(a)(3) provides that “Refusal of admission under paragraph (a)(1) of this section shall not constitute removal for purposes of the Act.”

With regard to those admitted under the VWP, on the other hand, 8 C.F.R. § 217.4(b)(1) lays out the procedures for summary deportation of “[a]n alien who has been admitted to the United States under [the VWP] who is determined by an immigration officer to be deportable from the United States under one or more of the grounds of deportability listed in section 237 of the Act.” The immediately following paragraph, 8 C.F.R. § 217.4(b)(2), makes clear that “Removal by the district director under paragraph (b)(1) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act.”

The key distinction between an initial refusal of admission under 8 C.F.R. § 217.4(a) and a later summary deportation under 8 C.F.R. § 217.4(b), then, is that the former “shall not constitute removal for purposes of” the Immigration and Nationality Act (INA), but the latter has the same consequences as removal after full-fledged removal proceedings under INA section 240, 8 U.S.C. § 1229a. This distinction is important because removal under the INA has long-term consequences.

Most notably, one who has been removed is inadmissible under section 212(a)(9)(A) of the INA, 8 U.S.C. § 1182(a)(9)(A), for a period of time varying between five years and indefinitely, depending on the circumstances of removal. In the ordinary course, when a removal order is issued after proceedings that were not initiated upon the arrival of the person removed, and there is no question of a second removal or an aggravated felony conviction, the period of inadmissibility is ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(I). One who wishes to seek readmission before this period has lapsed must obtain special consent to reapply for admission, pursuant to 8 U.S.C. § 1182(a)(9)(A)(iii). Such permission to reapply for admission can be sought from USCIS by filing an application on Form I-212, but will be granted only in the exercise of discretion and not automatically.

Summary refusal of admission to a VWP applicant, under 8 C.F.R. § 217.4(a), is not an order of removal for purposes of the INA according to 8 C.F.R. § 217.4(a)(3), and thus does not lead to a requirement that the refused applicant seek special permission to reapply for admission. Summary removal of a VWP applicant subsequent to admission under 8 C.F.R. § 217.4(b), on the other hand, has the same consequences as removal following ordinary removal proceedings according to 8 C.F.R. § 217.4(b)(2), which is to say that it will lead to at least a ten-year bar on readmission under 8 U.S.C. § 1182(a)(9)(A)(ii)(I) absent special, discretionary permission to reapply.

Thus, it was incorrect for the Third Circuit to say in Bradley and again in Vera that “Had Bradley known the contents of the waiver and refused to sign, he would be in the same position as he is now – subject to summary removal without a hearing” and thus unable to obtain status based on his marriage to a U.S. citizen. Bradley, 603 F.3d at 241; Vera, slip op. at 20. The summary removal without a hearing that Mr. Bradley and Ms. Vera would have faced at the time of their initial applications for admission, if they had refused to sign the VWP waiver based on a true understanding of what it meant, carried no collateral consequence of future inadmissibility to the United States. The summary removal that they faced after admission, on the other hand, carried a penalty of inadmissibility for 10 years.

Had Ms. Vera been refused admission when she came to the United States as a minor because she refused to sign the VWP waiver or was found unable to understand it, she would not have faced any bar on readmission to the United States. Now, however, she will, if removed under 8 C.F.R. § 217.4(b), be inadmissible under INA § 212(a)(9)(A) for a period of ten years. That alone would constitute the prejudice that the Third Circuit claimed was absent. Ms. Vera will also, if she is removed, likely be inadmissible for ten years under INA § 212(a)(9)(B), given her unlawful presence subsequent to admission, which she and Mr. Bradley would not have accrued if they had been refused admission because of refusal to sign a waiver—and which, even after they had accrued it, would not have precluded her or Mr. Bradley from adjusting status under INA § 245(a) based on a petition by a U.S. citizen immediate relative (such as a spouse) in the absence of the order of removal under 8 C.F.R. § 217.4(b) that is at issue here, so that there is indeed prejudice in this regard as well from subjecting Ms. Vera and Mr. Bradley to the strictures of the summary removal process despite the asserted lack of a knowing and voluntary waiver of rights by either of them. The Third Circuit’s suggestion that there was no prejudice in Vera and Bradley appears to have been based on the assumption that refusal of VWP admission under 8 C.F.R. § 217.4(a) and subsequent summary deportation under 8 C.F.R. § 217.4(b) are legally identical procedures with identical consequences, but this is not the case.

With this erroneous argument out of the way, the Third Circuit’s ruling in Vera appears to rest solely on the notion that a twelve-year-old girl must be presumed to have executed a knowing, voluntary, and meaningful waiver of her due process rights with regard to future removal from the United States simply because the governing statute and regulations indicate that the government ought to have required such a waiver prior to allowing her to enter the United States. That is a slender reed indeed, as discussed in a recent posting on the AILA Slip Opinion Blog. The Second Circuit’s decision in Galluzzo v. Holder, which the Third Circuit in Vera declined to follow and which held that a VWP entrant’s due process rights would have been violated (if prejudice were shown) when he was subjected to summary removal without any actual waiver, is significantly more convincing on that subject, and should be followed by other courts in the future. Indeed, it would make sense for even the Third Circuit, in the event of future panel or en banc reconsideration of Vera (or en banc reconsideration of its precedential value in a future case), to follow Galluzzo once the prejudice to someone in Ms. Vera’s situation has been explained.

EDGE SAYS INDIAN 2- YEAR MASTER’S DEGREE FOLLOWING 4-YEAR BACHELOR’S IS NOT EQUIVALENT TO US MASTER’S DEGREE

January 14, 2012/1 Comment/in Blog, uncategorized/by Cyrus Mehta

Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2 pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master’s degree after completing a 2-year program following a 4-year bachelor’s degree. Thus a student has to undertake 6 years of study in order to be awarded a master’s degree from an accredited US college or university.

It has generally been assumed that a foreign master’s degree, obtained after 6 years of education, would generally be equivalent to a US master’s degree. EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master’s degree, is equivalent to a US master’s degree. On the other hand, a master’s degree following a 2- or 3-year Indian bachelor’s degree only equated to a US bachelor’s degree and not a master’s degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master’s degrees. This is how EDGE, a paid service, describes it now:

Credential Description

Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor’s degree or four year BTech or BEngr degree.

Credential Advice

The Master of Science represents attainment of a level of education comparable to a bachelor’s degree in the United States.

Thus, regardless of whether the master’s degree is obtained after a 3- year or a 4- year bachelor’s degree program in India, EDGE is now equating both to a US bachelor’s degree. This downgrade of Indian master of science degrees would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master’s degree, following 6 years of education, is equivalent to a US master’s degree and not a bachelor’s degree. In addition, EDGE has also downgraded the Indian MBA, regardless of whether it was preceded by a 4-year engineering degree and the Indian master of science by research degree (which no longer appears in EDGE at present). While EDGE used to maintain that 2 years of coursework in business management leading to a post-graduate diploma from the prestigious Indian Institute of Management, India, was comparable to a master’s degree in the United States, this degree to has been downgraded to equate to only a US bachelor’s degree since only a three year bachelor’s degree is required

[Updated on 9/2/2013]. EDGE also still finds that an Indian master of technology or engineering degree, and master of computer applications degree, is equivalent to a US master’s degree. The same logic should hold true for other Indian master of science and MBA degrees, following a 4 year bachelor degree. It is therefore important to constantly check the foreign national’s educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master’s in the above situations may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor’s degree (since this master’s degree will still equate to a single source bachelor’s degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position with respect to Indian master of science degrees and the MBA, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master of science degree following a 4- year bachelor’s degree ought to be comparable to a US master’s degree. In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO’s decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees.

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master’s degree following 6 years of post-secondary education is functionally equivalent to a US master’s degree. Otherwise, the EDGE downgrade with Indian master of science and other degrees will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

(The blog was amended on January 18, 2012 to clarify that the downgrade only applies to Indian master of science degrees and a few other degrees but not all Indian master degrees)

UPDATE: EDGE FLIP FLOPS – SHOULD USCIS BE RELYING ON EDGE SO SLAVISHLY? – JANUARY 20, 2012

The author has learned today that EDGE has again reverted to its former position. It has deleted within the entry that a master of science degree beyond a 4 year degree is equivalent to a US bachelor’s degree. It leaves intact within that entry that a master’s degree following a 3 year bachelor’s degree is equivalent to a US bachelor’s degree. Does this mean that a master of science degree following a 4 year bachelor’s degree is equivalent to a master’s degree? We hope that the USCIS follows this logic and agrees. On the other hand EDGE now has an entry , and this is very strange, indicating that the master of engineering or master of technology degree following a 4 year bachelor of technology or bachelor of engineering degree is equivalent to a US bachelor’s degree. This cannot be the case and must be an error! In yet another entry, EDGE says that an Indian master of physiotherapy, master of science (nursing), master of science in engineering/technology, master of pharmacy and master of laws, following 4 or 5 year bachelor degree programs is equal to US master’s degree. All this is completely inconsistent with the downgrade, and results in uncertainty for those who rely on EDGE in filing immigrant visa I-140 petitions to get classified under the EB-2. Perhaps, USCIS, given these flip flops and inconsistencies, should no longer treat EDGE as the gospel truth with respect to determining whether these degrees are equivalent to US degrees, and give more credence to justifications provided from other reliable sources determining the accurate equivalence of such degrees.

BIA CONTINUES TO REAFFIRM BROAD “SOUGHT TO ACQUIRE” STANDARD UNDER CSPA

October 18, 2010/0 Comments/in Blog, uncategorized/by Cyrus Mehta

by Gary Endelman and Cyrus D. Mehta

In a recent unpublished decision, the Board of Immigration Appeals, in In re Jose Jesus Murillo, A099 252 007, October 6, 2010, http://drop.io/oucv5fe, reaffirmed its broadened “sought to acquire” standard under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

The Board in In re Jose Jesus Murillo held that the term “sought to acquire” includes substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing or submission to the relevant agency. The Board’s interpretation will provide further relief to children who are otherwise protected by the CSPA but unable to comply with or navigate the complex bureaucratic requirements to file within one year. It should be noted that In re Jose Jesus Murillo is an unpublished decision, devoid of any precedential authority, and does not bind the DHS or the DOS. Still, it follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard and thus provides more ammunition to those who need to make similar arguments. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability. It is the interpretation of the term “sought to acquire” that was the subject of the Board’s holding in In re Jose Jesus Murillo.

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008), http://www.uscis.gov/files/nativedocuments/CSPA_30Apr08.pdf. The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), http://travel.state.gov/visa/laws/telegrams/telegrams_1369.html. In cases where the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinion in cases in which some other “concrete” step has been taken.

We question why the DHS and DOS sought and continue to seek the most restrictive interpretation of what is clearly a remedial statute. Here is the legislative history of the CSPA, which is worth reproducing from the Board’s decision in In re Jose Jesus Murillo:

The congressional. intent in enacting the CSPA was to “bring families together” (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to “provide relief to children who lose out when INS takes too long to process their adjustment of status applications”(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, “where we can correct situations to bring families together, this is extremely important.’.’ ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children “through no fault of their own, lose the opportunity to obtain immediate relative status.” H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should “be construed so as to provide expansive relief to children of United State citizens and permanent residents.” Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

In In re Jose Jesus Murillo, the Board rejected the DHS’s position that “sought to acquire” means the actual filing of an application or petition. The Board stated that “it is not bound by the interpretation of the DHS or DOS as to the statutes which it administers” (citing Matter of M/V Saru Meru, 20 I&N Dec. 592, 595 (BIA 1992)). The Board observed that INA §203(h)(1)(A) includes the unique term “sought to acquire” rather than terms such as “file,” “submit” or “apply,” which appear in other parts of the INA. While each of these terms require the presentation of an application to relevant officials, the meaning of words such as “seek” or “sought” include “to try to acquire or gain” or “to make an attempt” according to the Board, which referred to the Merriam-Webster’s Collegiate Dictionary.

In In re Jose Jesus Murillo, the respondent claiming status as a child did not file the I-485 application within one year of visa availability. However, the respondent argued that he still satisfied the “sought to acquire” element because he hired an attorney to prepare his adjustment of status application within one year of the visa numbers becoming available, and he filed his application within a reasonable time thereafter while he was still under the age of 21. The Board held that the respondent child, whose age was otherwise protected under the CSPA, clearly demonstrated an intent to file his application and made substantial advances towards having the application prepared and filed through an attorney within the one-year period. The Board observed that if it had found otherwise, the child would have aged out and would have been unable to seek CSPA protection for no fault of his own. The Board also did not require a showing that this attorney was ineffective in filing the document within one year.

The Board’s decision to broaden the term “sought to acquire” to include steps short of actually filing an application is indeed welcome. There are many situations in which a child protected under the CSPA may not be able to comply with the rigorous filing requirements of the DHS or the DOS within the one-year filing period. Moreover, the Board’s ruling would assist those who are in removal proceedings, and who may not be able to obtain a timely hearing with an Immigration Judge in order to file an adjustment application within one-year of the visa number becoming available, and an alternative filing with the clerk of the court is not made within the year or rejected. There may be other situations where the parent may have filed an I-485 adjustment application many years ago, and may not have included the I-824 application with his or her application. It was not usual to attach an I-824 with an unadjudicated I-485 adjustment application prior to the CSPA. Moreover, there have also been situations where the NVC, during the initial processing of a consular visa application, may have erroneously omitted the child’s name even though he or she was protected under the CSPA. As a result, the child or the parent of the child may not have complied with the DOS requirement of filing a DS 230, Part I, but may have taken other steps to seek LPR status such as attempting to contact the NVC by letter or telephone to include the child, or took other steps such as seeking the advice of an attorney.

In these situations too, one can demonstrate that the CSPA child “sought to acquire” LPR status within one-year of visa availability. On the other hand, not every step to seek permanent residence in the one year period will be viewed favorably especially when it does not comport with CSPA’s purpose, which was to protect an alien child from aging out due to no fault of his own. In In Re Mario Francisco Cisneros Baron, 2009 WL 3713334, the respondent asserted that neither did he nor his parents file an adjustment application within one year because of his criminal convictions. He was put into removal proceedings and left voluntarily, and then illegally reentered and lodged an adjustment application in connection with subsequent removal proceedings. The Board, in this case, remained unpursuaded that his parents consulted with a lawyer within one year of the visa availability date since, here, the respondent was himself partially responsible for failing to file an adjustment application “because of a tactical decision resulting from his own criminal behavior.”

While none of these are published decisions, those seeking CSPA protection should rely on In re Kim, In re Castillo-Bonilla and now In re Jose Jesus Murillo to make similar arguments in cases before the DHS, an Immigration Judges, the Board, before US Consuls overseas and even in federal court. We commend the Legal Action Center of the American Immigration Council for filing a winning amicus brief in In re Jose Jesus Murillo, and readers will surely profit from its CSPA Practice Advisory, http://www.legalactioncenter.org/practice-advisories/child-status-protection-act. Practitioners should continue to seek to interpret “sought to acquire” in a broadly humane way for their clients to achieve what the Congress intended, a formula for the protection of children and advancement of family unit

NATURALIZING IN A FLAT WORLD

July 9, 2010/0 Comments/in Blog, uncategorized/by Cyrus Mehta

by
Gary Endelman and Cyrus D. Mehta

As we enter the second decade of the 21st century, the world seems to be getting far more flat than what Tom Friedman originally envisaged with people being able to deliver services and products to the US and other countries from anywhere via the internet. Also, coinciding with this flat world is the most severe US recession in living memory, which compels people, including immigrants, to find jobs in other parts of the world and yet remain firmly rooted with the US.

Gone are the days when immigrants came to the US in sailboats and steamships, destined never to return home. In today’s globalized flat world, with access to cheap direct flights across continents, broadband internet, Blackberries, Twitter, Facebook, LinkedIn and video conferencing, an immigrant can continue to maintain deep ties and bonds even if absent from the country. It is quite typical for a US company to assign its key employee, a freshly minted green card holder, working in the US to set up operations in Mumbai or Shanghai for a few years, with the intention of ultimately returning to the US. Yet, this person’s ability to become a US citizen can get jeopardized as a result of this overseas assignment. In our previous article on a related subject, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849 (July 1, 2008), we focused on strategies to preserve permanent residence. In this blog post, we examine the tension between our citizenship laws and the global economy, and the challenges it poses to those who desire to naturalize.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

This is the killer provision, which we focus on in this post, and which creates problem when a permanent resident is based overseas and wishes to naturalize after completing 3 or 5 years, but is not able to continuously reside in the US even though he or she still returns to the country frequently and maintains extensive ties. Naturalization is a most desired goal, since paradoxically, once the person successfully naturalizes, he or she is no longer required to maintain a residence in the US. However, in order to naturalize, the applicant must maintain continuity of residence, and this is often thwarted by the fact that he or she is working overseas. The spouse who is overseas because he or she is accompanying the other spouse and who is often caring for the children, also suffers as a result.

There appear to be two views of what constitutes residence. INA § 101(a)(33) states: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Note that the concept of domicile, which considers the applicant’s intent rather than the place where he or she actually lives, is not relevant in determining whether the applicant for naturalization has resided continuously in the US. Under this provision, an applicant may be deemed to not being a resident regardless of the number of days he or she is away from the US. An applicant who is getting nowhere during the naturalization interview because of the examiner’s invocation of § 101(a)(33) should remind the examiner that the statute requires not mere residence but continuous residence in the US, and must point him or her to 8 C.F.R. § 316.5(c)(1)(i), which provides that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days. Remember, if your client did not stay away one year, he or she must be considered a resident of the same state where they lived before leaving. 8 C.F.R. 316.5 (b)(5). See Accardi V. Shaugnessey, 347 US 260(1954); Morton v.Ruiz, 415 US 199, 235 (1974)(“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”).

What if the person was out of the US for more than six months and less than a year and has disrupted continuity of residence? Don’t lose hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation states that the evidence may include “but [is] not limited to” evidence that during an extended absence:

(A) The applicant did not terminate his or her employment in the US;
(B) The applicant’s immediate family remained in the US;
(C) The applicant retained full access to his or her US abode; or
(D) The applicant did not obtain employment while abroad.

In Li v. Chertoff, 490 F.Supp.2d 130 (D. Massachusetts 2007), a federal district court held that an applicant who had absences of more than six months but less than 1 year as a student in Canada did not disrupt the continuity of residence even though she had obtained permanent residence in Canada. The plaintiff, after being downsized from a US employer, went to Canada to pursue an opportunity to study in a dental program at the University of Alberta. Her husband accompanied her to Canada and took up a job with the same contractual term as the plaintiff’s course of study. The rest of the plaintiff’s family still lived in the US and she retained a home in Cambridge, Massachusetts, where mail was delivered and she also continued to file tax returns in the US. While rejecting the application of the generic definition of residence in § 101(a)(33) in favor of continuous residence, the court clarified that that the four criteria in 8 C.F.R. §316.5(c)(1) may establish that the applicant did not disrupt the continuity of her residence, but also noted that it may consider other relevant factors. Although the court did not accept her argument that she did not terminate her employment in the US under prong (A) since her employer forcibly terminated her, the court accepted the fact that her extended family remained in the US under prong (B), even though her most immediate family member, her husband, accompanied her to Canada, and it was undisputed that she retained access to her home in the US under (C) and she did had not obtained employment in Canada under (D).

Compare Li v. Chertoff with an earlier case In Re Bartkiw, 199 F.Supp. 762 (E.D. Pa. 1961), where the former INS granted naturalization based on incorrect information, not knowing about Bartkiw’s relocation to Canada. The district court in Pennsylvania in denying Bartkiw’s claim that she had not disrupted residence made an observation which was redolent of an era prior to feminism’s onset a few years later:

We find it impossible to conclude that this young woman, married, with her husband holding a responsible position in Canada where he was a citizen, and who thereafter maintained a home with him, did not intend to live in Canada as a resident. It may very well be, as stated in our findings of fact, that both she and her husband hoped that at some time in the future she would become a citizen of the United States; that he would obtain employment in the United States and that they would live here permanently as husband and wife. But, unfortunately for the position of the respondent, that hope for the future and not a present fact.

Bartkiw, 199 F.Supp. at 766.

Clearly, Li v. Chertoff is the better decision, and naturalization examiners ought to be taking into account other factors besides the four factors set forth in 8 C.F.R. § 316.5(c)(1). What if the accompanying spouse of the rotational executive is pregnant with complications and both are unable to return to the US within 180 days? Should this not be considered a relevant factor? After all, the regulation suggests that the evidence that may be used to rebut the disruption of continuity of residence need not be limited to these four factors. In analogous cases involving the abandonment of permanent residence, which can be avoided if the trip abroad was temporary, the term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

See Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez- Ramirez v INS, 792 F.2d 932 (9th Cir. 1985).

The Second Circuit, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” See Ahmed v.Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); see also Hana v. Gonzales, 400 F.3d 472 (LPR status not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize).

Practitioners should creatively argue on behalf of their clients that unforeseen events may have delayed a return back to the US in less than 180 days. Moreover, even if one’s intent is not relevant in determining disruption of residence, unlike the law on abandonment of permanent residency, these decisions can still be helpful to argue that there were relevant factors to assess whether or not residence had been abandoned for purposes of naturalization. We should also forcefully argue that working for a US corporation overseas on a temporary basis ought to be a relevant factor and not a negative. See Matter of Wu, 14 I&N Dec. 290 (R.C. 1973) (denial of reentry permit was erroneous since the LPR was employed for an American firm overseas and had successfully applied for preservation of continuity of residence for purposes of naturalization).

Finally, while beyond the scope of this post, always explore if there are other ways to naturalize that would obviate the perpetual anxiety of a permanent resident living outside the US. Under INA § 319(b), spouses of US citizens working overseas for US corporations or their subsidiaries, or in certain other capacities, can naturalize without meeting the residency requirements, http://tiny.cc/so5p3. Employees working abroad can preserve their residency by filing Form N-470 if, inter alia, they work for an American firm or corporation, or a subsidiary thereof, that is engaged in the development of foreign trade or commerce of the US. But in order to be eligible, the applicant must demonstrate one year of actual unbroken physical presence in the US after acquiring permanent residency. Matter of Graves, 19 I&N Dec. 337 (Comm’r. 1985); Matter of Copeland, 19 I&N Dec. 788 (Comm’r. 1988). Very few can meet this requirement as even a brief day trip to Canada during that one year period will disqualify the applicant from filing the N-470 application. Remember what an N-470 will do and what it will not do. If approved, the N-470 means that concerns over continuity of residence can be put aside. However, all other substantive requirements for naturalization, including satisfaction of physical presence requirements still must be satisfied. The N-470 may avoid disruption of continuity of residence but your client could still be deemed to have abandoned permanent resident status. That is where and why the re-entry permit can be a lifesaver especially since, if the issue of green card abandonment is raised when the person returns to the US, contrary to what you and your client might expect, there is some recent case authority for placing the burden of proof that abandonment did not occur squarely upon the unsuspecting shoulders of the soon to be surprised permanent resident. And if you are out for more than one year, you will need to accumulate another round of 4 years and 1 day to naturalize. 8 C.F.R. 316.5(c)(1)(ii). This could be true even if it was Uncle Sam that prevented your client from coming back sooner. In Gildernew v. Quarantillo, 594 F.3d 131, 133 (2d Cir. 2010) TSA put the permanent resident on a “No Fly” list for a year while he cooled his heels in Ireland. Ultimately concluding that there was no”derogatory information” against him , TSA let him come home but too late to save his ability to naturalize as he had been out of the US for more than one year.

As the immortal philosopher Will Rogers was fond of saying: “Even if you are on the right track, you’ll still get run over if you just sit there.”

DIFFERENT STROKES: USING DIFFERENT EXPERIENCE REQUIREMENTS ON A LABOR CERTIFICATION AND I-140 PETITION

June 18, 2010/4 Comments/in Blog, uncategorized/by Cora-Ann Pestaina

by Cora-Ann V. Pestaina

We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals are inconsistent with the degree-equivalency regulations that govern H-1B specialty occupations and that USCIS degree-equivalency regulations and the DOL’s SVP scheme applied to labor certifications widely differ. We’ve come to understand how vital it is that we map out the entire green card process prior to filing a PERM application and that we anticipate every potential pitfall and make early strategic decisions to prevent them. Yet, despite all our hard-earned knowledge and efforts, most of us will, at some point, be forced to deal with an unanticipated snag on an equivalency issue especially when the government changes its interpretation on an particular foreign degree.

Ronald Y. Wada, who many of us turn to for guidance through the frustratingly obscure law of degree-equivalency, has written a new article, The Nth Degree – Issues and Case Studies in Degree Equivalency: Crossing the Borderland Between DOL and USCIS Requirements, 15 Bender’s Immigr. Bull. 863 (June 15, 2010). The article addresses the differences between the reviewing practices of the DOL and USCIS. While we’ve always focused on degree-equivalency requirements, the article highlights a different issue – experience.

The PERM program established a “substantially comparable” standard when considering whether prior experience gained on-the-job with the same employer may be used to qualify a foreign national for the job offered. Specifically, under the PERM regulations, a sponsoring employer is permitted to consider experience gained with that employer in instances where it establishes that the position in which the alien gained the qualifying experience is not “substantially comparable” to the job for which labor certification is being sought. Substantially comparable is defined by the regulations as a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Then, there is the USCIS rule, established in Matter of Wing’s Tea House, 16 I&N Dec. 158 (Acting Reg’l Comm’r 1977), a precedent decision, which holds simply that the foreign national must possess the qualifications specified on the labor certification as of the priority date.

In his article, Mr. Wada writes, “Since the AAO has stated in numerous nonprecedent decisions (and federal courts have affirmed) that USCIS has the authority to determine whether the beneficiary meets the job requirements shown on the PERM application, once the labor certification is approved by the DOL the rule regarding what experience can be counted shifts to the USCIS rule.” This circumstance could provide the escape from the snare of a badly designed PERM, provide another option when the foreign national presents new information at the I-140 phase (“Sorry, I guess I can’t get all those experience letters after all!”) or even help in instances where the USCIS attempts to revoke a previously approved I-140.

The Wada article presents the case where a PERM was designed with a Master’s degree requirement and was certified. At the I-140 phase, the USCIS refuses to accept the foreign national’s Master’s degree deeming his credentials equivalent to only a U.S. Bachelor’s degree. A bachelor’s degree plus five years of post-baccalaureate progressive experience equates to a Master’s degree. If the foreign national is able to demonstrate five years of progressive, post-degree work experience prior to the priority date of the PERM application, then under the USCIS policy in Matter of Wing’s Tea House, the foreign national may yet qualify for the offered position and for EB-2. Importantly, the foreign national may even utilize experience gained on the job with the sponsoring employer – something he could not do during the labor certification phase especially if the two positions with the same employer were not more than 50% different! He may combine experience gained with a previous employer and experience gained with the sponsoring employer to arrive at the requisite 5 years of post-degree experience. It is only necessary that the foreign national meet the job requirements prior to the priority date, which is established when the labor certification is filed. USCIS does not set forth any “substantially comparable” standard à la the DOL.

Matter of Wing’s Tea House could also work in instances where, whether it’s an EB-2 or an EB-3 I-140, the foreign national belatedly discovers that her previous employer still harbors ill-will toward her and thus refuses to issue her an experience letter. If the foreign national is left short 1 year of experience and she had been employed with the sponsoring employer for at least 1 year before the labor certification was filed on her behalf, under Matter of Wing’s Tea House, the foreign national could combine experience gained with the sponsoring employer and her previous experience to qualify her for the offered position despite the fact that her on-the-job experience would not have qualified her for the offered position at the labor certification phase due to the DOL’s “substantially comparable” rule.

But will it actually work? Having said all that, we should bear in mind that the USCIS is afforded grounds in 20 C.F.R. §656.30(d) to invalidate a labor certification based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. While the scenarios outlined above would not compel such a finding, is there a chance that the USCIS could request that the DOL revoke the labor certification? Under 20 C.F.R. §656.32(a) the DOL may revoke an approved labor certification, based on a finding that the certification was not justified. If the foreign national is found not to possess the degree or the experience listed on the PERM, which is not being used consistently at the time of the I-140, could it be held that the certification was not justified? It is interesting food for thought. However, Matter of Wing’s Tea House indeed presents an innovative path that could possibly be used to save an I-140 in trouble.

STUDY SHOWS THAT H-1B AND L-1 WORKERS ARE PAID HIGHER WAGES THAN THEIR US-BORN COUNTERPARTS

May 21, 2010/2 Comments/in Blog, uncategorized/by Cyrus Mehta

Here is a refreshing new study on H-1B wages. It is refreshing because unlike most other studies that take pains to show that H-1B workers are paid less than US workers and depress the labor market, this one by Professors Lucas and Mithas of the University of Maryland’s Business School demonstrates quite the opposite. H-1B and L visa workers in the IT Industry were paid 6.9% more than their American counterparts, and green card holders took home more than 12.9% than their American counterparts. This study confirms what we immigration lawyers have always known – that US employers seek out workers on H-1B and L visas because they are really good and not because they can get away by paying them cheaply. We also know that employers are not going to go through the hoops and hurdles of filing an H-1B or L visa petition, pay filing and attorney fees, take pains to comply with all of the complex regulatory requirements (including paying the prevailing wage for H-1B workers and those being sponsored for green cards through labor certification), and respond to burdensome requests for evidence, unless they believed in the worth of this foreign worker. Then, sponsoring this same person for a green card through the onerous labor certification process is even more difficult. Of course, opponents of the H-1B and L programs such as Ron Hira will continue to gripe and poke holes at the study, as the article in CIO suggests, but I am glad that our anecdotal experience has been backed up by a solid peer reviewed academic study. Hopefully, USCIS officials and Congressional folks will also read this study, and refrain from trying to restrict the H-1B program through burdensome memos, like the January 8, 2010 Neufeld Memo, or pass legislation to restrict these visas like Senators Grassley, Durbin and Sanders have been doing.

http://www.cio.com/article/594381/H_1B_Visa_Holders_Earn_More_Than_U.S._Born_IT_Professionals_Study_Claims

H-1B Visa Holders Earn More Than U.S.-Born IT Professionals, Study Claims
– Stephanie Overby, CIO
May 20, 2010

One of the biggest complaints about the federal government’s H-1B and L-1 visa programs is that they could be used by corporations to hire skilled workers born outside the U.S. at wages lower than the U.S. market rate. Indeed, anti-H-1B visa activists say the program depresses American IT workers’ salaries and robs them of jobs.

But new research from the University of Maryland seems to contradict anti-H-1B visa activists’ claims about the immigration program’s impact on American wages. In fact, the research suggests that foreign-born IT professionals with temporary skilled worker visas actually earn more than their American counterparts, not less.

Hank Lucas, professor of information systems at the University of Maryland’s Robert H. Smith School of Business, and assistant professor Sunil Mithas examined the effect of immigration policies on IT salaries using data from online salary surveys conducted from 2000 to 2005 by InformationWeek and management consultancy Hewitt Associates.

After adjusting for educational qualifications, work experience, and other individual characteristics, Lucas and Mithas found that IT professionals without U.S. citizenship earned 8.9 percent more than American citizens. Tech workers on temporary visas, such as the H-1B and L-1, were paid 6.8 percent more than those with U.S. citizenship, and green card holders took home 12.9 percent more than their American-born counterparts, according to Lucas’ and Mithas’ research, published this month by the Institute for Operations Research and the Management Sciences.

The professors say restrictive visa policies resulted in even higher salary premiums. In years when applications exceeded the annual caps for H-1B visas, salaries for all non-U.S. citizen IT workers—that is, visa or green card recipients—rose relative to the salaries of American-born IT professionals, say Lucas and Mithas.

Mithas says the study was driven by the lack of compelling data around claims that foreign-born IT professionals are taking away jobs from American workers. “Much of the immigration debate in this country ignores skill levels,” says Lucas, adding that the influx of non-U.S. citizens has a much different impact on job availability and wages for unskilled labor than it does for skilled workers. U.S.-born citizens and foreign workers can potentially benefit from an influx of skilled workers, Lucas says.

H-1B Salary Survey Ignites Controversy

The Lucas-Mithas research deviates from the findings of other studies investigating the effect of temporary visa programs on the salaries of U.S. IT professionals. According to Lucas and Mithas, H-1B visa holders earned an average of $75,358 from 2000 to 2003, compared with the average U.S. citizen’s salary of $66,836. (The InformationWeek survey did not ask about visa status in 2004 and 2005). But according to the U.S. Citizenship and Immigration Service (USCIS), the median salary for H-1B visa holders in computing professions during the 2000 to 2003 period was just over $50,000.

“It [seems]strange to me that the authors would depend on sampled data when we have the whole census of new H-1B recipients’ salaries reported [by] the USCIS, at least in aggregate terms,” says Ron Hira, associate professor of public policy at the Rochester Institute of Technology. “For computing occupations those data show low wages relative to Bureau of Labor Statistics wages for Americans. The median salary for new H-1Bs is comparable to the entry-level wages for freshly minted bachelors in computer science, as reported by the National Association of Colleges & Employers. So half the new H-1Bs are being paid at- or below entry-level wages.”

Lucas and Mithas say the USCIS and BLS numbers aren’t granular enough to make meaningful comparisons. “You don’t get a good sense of who these people are, what is their educational background, how long have they been in IT, what industry are they working in,” says Mithas. “If you don’t have data at an individual level, you don’t know if you’re comparing apples to apples.”
Hira suggests there may be a self-selection bias at play when using a sample population. The data Lucas and Mithas used comes from 50,000 IT professionals, including 809 temporary visa holders, who opted to participate in an online salary survey. The researchers say the overall sample and sample of non-U.S. citizen foreign-born IT professionals in their study is reasonably representative of the U.S. population.

While those numbers may line up, it’s unlikely that H-1B or L-1 grantees who depend on their employers for their visas and who earn lower than average wages would participate in such a survey, says Hira. “The [Lucas-Mithas] report may be able to control for some additional factors that affect wages, but there is no doubting the USCIS characteristics data ,” says Hira. “It is a census, not a sample.”

Lucas admits that selection bias could be a factor in any survey, but he remains confident in his data. “In situations like this, there’s always the possibility for the sample not to be truly random,” he says. “But I feel more comfortable with this survey with 50,000 respondents than I would if we did a random sample of a couple hundred IT professionals on our own.”

Why Corporations Pay More for H-1Bs

Lucas and Mithas say their research proves that corporations use foreign-born IT professionals as a complement to, not as a cheaper substitute for, their American workforce. But the data does not provide any explanations for why employers would pay non-citizen IT workers more.
Lucas and Mithas have their own theories. For one, they think companies recruit foreign IT professionals for skills or expertise that they can’t get from American workers, whether it’s a stronger work ethic, multi-cultural experience, or willingness to travel.

“We were searching for an explanation, and it wasn’t education or anything we could measure. So it had to be something intangible, like how aggressive you are or how much of a risk taker,” says Lucas. “I’d have to say it’s motivation. You have to be motivated to break out of the rut you’re in, get out of the city you were born in, go to another country and work in IT.”

Hira is not buying it. “There’s no doubt in my mind that, in general, H-1B workers are underpaid. That’s why the offshore outsourcing majors rely almost exclusively on H-1Bs rather than hiring Americans,” he says. “Plus they are beholden to their employer, making it more difficult for them to protest against poorer [wages and] working conditions.”

Hira notes that it’s possible the compensation among IT workers on temporary visas falls into two camps: “lots of low wage workers and a good portion of high wage workers.”

B. Lindsay Lowell, director of policy studies for Georgetown University’s Institute for the Study of International Migration, has been analyzing the salaries of H-1B visa holders in science and technology using data from the National Science Foundation’s National Survey of College Graduates. He has found that H-1Bs are paid lower average wages during the first three years of their permitted stay, but once they reapply for another three years or change employers, they may earn more than comparable U.S. citizens.

“The NSCG is an odd survey itself, but it’s the largest random survey of graduates in the United States,” says Lowell. “The reason we think there’s an increase in wages is due to a change in bargaining power on the part of the H-1B. Of course, the first three years still reflects a savings to the employer.”

Jacob Funk Kirkegaard, a research fellow at the Peterson Institute for International Economics, examined the Department of Labor’s database of labor condition applications (LCAs) and surmised that many large U.S. corporations and educational institutions frequently offer their H-1B recipients salaries substantially above the prevailing U.S. wage. However, he says, “offshoring/outsourcing type IT services providers” aggressively pursue all legally available paths to cut labor costs, including paying foreign workers only the legally mandated 95 percent of the prevailing wage.

“That suggests another point I’ve long argued, and which is supported in my and others’ research,” says Lowell, “which is that the H-1B labor market is softly segmented with different types of employers who pay less than the mainstream to the H-1Bs in their employ.”
Lucas and Mithas consider the LCA data unreliable because it does not provide actual salary data, and many approved LCAs don’t result in the granting of an actual visa.

“There are an awful lot of anecdotes of this or that company bringing in foreign workers and paying them less than the going wage, but you can’t take that and generalize it to thousands of people,” says Lucas. “We’d love to get inside of Infosys and Accenture and get detailed individual information, but privacy concerns enter into this, and they wouldn’t want to give us the information anyway. They’re afraid, no matter which way the research comes out, they’ll be criticized.”

More Research Into H-1B Wages Needed

There are as many as 700,000 temporary high-skill foreign professionals in the United States on visas today (approximately 500,000 in the H-1B category alone), and 60 percent of them work in IT, according to some estimates. More detailed data from USCIS or some other source would go a long way toward settling the debate over whether or not these visa programs depress the wages of IT professionals.

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