Monique Kornfeld, Immagration Lawyer

H-1B Request for Evidence Season and the Challenge to Level I LCA Positions

August 7th, 2017

The request for evidence (RFE) for H-1B specialty occupation worker visa petitions is in full swing and USCIS has added a new impediment to the H-1B process: the challenge to level I prevailing wage Labor Condition Applications (LCAs). Typically, USCIS will send requests for evidence of the professional nature of the position (requiring at least a bachelor’s degree in a related field) and/or the availability of sufficient professional work. This newest request for evidence, that the offered H-1B position is entry level where the underlying LCA relies on a prevailing wage level of I, is particularly misguided, illogical and unreasonable.

USCIS is relying on the entry-level definition from the US Department of Labor’s prevailing wage guidance. This guidance states: “Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.”

USCIS appears to be challenging the validity of an entry level of any position, which would have a level I prevailing wage determination. It is conflating the level within a particular occupation with the overall substantive nature of the knowledge and skill involved in every level of the occupation itself. In other words, it is ignoring that even the highest-skilled occupations, such as physicians, include a basic staging point from which every physician begins his or her career.

Also, USCIS’ RFEs on the level I prevailing wage positions violate the primary regulation on H-1B specialty occupations. The controlling regulations on the definition of a “specialty occupation” for H-1B purposes does not require that the job duties themselves satisfy the level I definition as noted by USCIS in the RFEs. Rather, according to 8 CFR §214.2(h)(4)(iii)(A)(1)-(4), an H-1B specialty occupation is one defined as satisfying only one of the four requirements listed below:

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 [sic] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, if the employer can evidence that the proffered position normally requires at least a bachelor’s degree (within the organization, industry wide or as recognized as the normal requirement for entry into the particular position), then the employer has met its burden.

RAISE Act Attacks Legal Immigration and Ignores Business and Family Needs

August 4th, 2017

The Senate has proposed legislation that would have far-reaching consequences, drastically cutting legal immigration, favoring highly-skilled immigration substantially and reducing family sponsorship and unskilled labor. This simply ignores the benefits of legal immigration, family unity, chain immigration and the needs of US employers.

The Reforming American Immigration for a Strong Economy (RAISE) Act, introduced by Republican Senators Tom Cotton and David Purdue, and with the support of Trump, would create a merit-based point system, reduce family-based legal immigration by half, eliminate certain preference family categories, rid of the diversity visa lottery program and reduce refugees to 50,000 per year.

The merit-based point system fails to adequately consider the needs of US employers and will not make our economy stronger. It would favor higher-skilled workers based on their education, experience, achievements, English-speaking ability and the offered job salaries. However, this is an unprecedented intrusion by the federal government into decisions by US employers on the types of workers they need for their businesses. The narrow point-based system ignores considerations like one’s field of work and special skills. For example, it does not take into account young graduates from US schools just starting to work, seasonal workers filling gaps in our economy and artists and entertainers who contribute to our cultural diversity. Also, by switching to a point-based system, the RAISE Act unfairly eliminates the EB-5 investor visa program and the physician national interest waiver green card program.

The RAISE Act would also eliminate all family-based immigration categories except for spouses and children under 18 of US citizens and legal permanent residents. No longer would a US citizen be able to sponsor his or her parent and the temporary visa for certain parents is insufficient. Family-based immigration creates strong communities and helps businesses develop. In addition, family-based immigration fuels innovation. A majority of businesses in Silicon Valley were started by immigrants, many of whom came to the US through family sponsorship. Finally, this bill’s extremely narrow grandfathering would unfairly penalize those sponsored family members who have been waiting for years to immigrate to the US.
The basis of the legislation operates on the false assumption that immigration harms the US and it aims to increase wages for lower-skilled workers and reduce alleged abuse of the welfare system. However, cutting legal immigration for family members and low-skilled workers is not only misguided, nonsensical and harmful to our economy but is unnecessarily cruel in splitting apart families.

Slashing legal immigration by half does not make any sense, since legal immigration, including low-skilled immigration, creates jobs and bolsters the economy. Current immigration complements the US economy and creates jobs. The US population is growing older and the percentage of the population at retirement age will double by 2050. There is a dire gap in low-skilled workers, especially in industries such as agriculture, tourism and construction. In three to five years, we will need an additional 7.5 million workers in low-skilled industries. Such a gap will only grow and harm the US economy.

In fact, based on the dearth of workers, the US should be substantially increasing employment-based visas and creating new categories of working visas. Never has there been a time in history when the US has faced such global competition to attract the world’s talent and skills to the US. In an article in the New York Times on Sunday, July 31st, it noted that other countries, such as Canada and Mexico, are taking advantage of the US’ animus toward foreign workers and doing their best to attract them. Canada is instituting a new temporary working visa that is unlimited and should be processed in at little as two weeks. There are long backlogs for foreign nationals in the US to obtain green cards, which may cause many to consider moving to other countries where they are appreciated for their contributions.
It should also be emphasized that low-income non-citizen adults and children actually use fewer public benefits than native-born adults or citizen children with citizen parents. In addition, economic studies have found that immigrants have a net positive affect on our economy with the second and third generations contributing in the many billions to the US economy.

Notwithstanding the practical economic arguments against the RAISE Act and its erroneous assumptions, ultimately we should be admitting family members for family unity purposes and protect refugees who are fleeing persecution. It is contrary to our tradition of serving as a beacon of hope to the oppressed worldwide. We as Americans must seriously ponder who we want to be as a nation. Charles Darwin, in the “Descent of Man” conceded that there might be advantages to abandoning the weak and helpless, but he insisted that doing so would bring a greater “evil.” He emphasized that we must allow the weak to survive, and that by abandoning the weak and helpless we abandon “the noblest part of our nature.”

Luckily, there is not much support in the Senate for the legislation and it probably will not gain traction there or in a similar bill in the House.

Grant of Temporary Restraining Order Against ICE Detainer

July 31st, 2017

In Sanchez-Ochoa v. Campbell, a federal district court in eastern Washington granted a temporary restraining order against the enforcement of federal immigration holds, or Immigration and Custom Enforcement (ICE) detainers, finding that such detainers violate the US Constitution’s Fourth Amendment that provides a right to be free from unreasonable seizures. Judge Salvador Mendoza emphasized that the Fourth Amendment requires an arrest warrant (finding a hold a type of arrest) be approved by a judge and not an employee of the executive branch. ICE officers complete a document for an administrative warrant stating the violation of immigration laws and give it to a local law enforcement official who in turn places the inmate on federal hold.

Yakima County jail has a policy of enforcing such detainers and entering a hold any time it receives a detainer. In this case, it prevented the inmate from seeking to post a bond, which was allowed under a state court ruling.

In Commonwealth v. Seynuon Lunn, the Massaschusetts Supreme Judicial Court (SJC) invalidated ICE detainers based on a violation of state law and it did not implicate the federal Constitution. It found that there is no Massachusetts statute or case law authorizing the local officials to make a civil arrest in this case. The SJC stated that even if federal officials wanted to make detainers mandatory, the Tenth Amendment of the US Constitution would bar it. The SJC’s decision is not appealable.

Request in Federal Court to Dismiss Challenge to DACA by Texas

July 31st, 2017

The Mexican American Legal Defense and Educational Fund (MALDEF) filed a motion in the US District Court for the Southern District of Texas to dismiss a threat by the State of Texas to amend its lawsuit against DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) to include a belated challenge against Deferred Action for Childhood Arrivals (DACA). MADELF is arguing that the original lawsuit against DAPA is not sufficiently related to DACA. DAPA, an Obama initiative, was barred by the Federal courts in 2015 and it never went into effect. The US Department of Homeland Security issued a memorandum on June 15, 2015, officially rescinding DAPA. MALDEF argues that such rescission renders the lawsuit to include DACA moot.

During the 2015 federal court proceedings to seek a preliminary injunction against DAPA, Texas was unequivocal that it was not challenging the 2012 DACA program. MALDEF argues that now, almost three years after the case, Texas should file a new lawsuit seeking invalidation of DACA.

Legislation to Provide Path to Green Card for Dreamers

July 29th, 2017

Representatives in the House have introduced two pieces of legislation that will provide “Dreamers,” or children who came to the US without status or overstayed their status, with the chance to apply for legal permanent residency (green card status) in the US and eventually to apply to naturalize to become US citizens. The Dream Act of 2017 is led by Representatives Lucille Roybal-Allard (CA) and Ileana Ros-Lehtinen (FL), and the American Hope Act was sponsored by Minority Leader Nancy Pelosi (CA), Minority Whip Steny Hoyer (MD), Luis Gutierrez (IL) and members of the Congressional Hispanic Caucus.

AILA lauded these pieces of legislation: “These bills make clear that there is bipartisan support for Dreamers that literally reaches across our nation with Representatives Roybal-Allard of California and Ros-Lehtinen of Florida leading the charge. Many leaders in Congress recognize that protecting Dreamers is good for America. At a time when the Deferred Action for Childhood Arrivals (DACA) has come under threat, action by Congress is vitally important to ensure these young men and women are protected from being ripped from their communities. Dreamers are emblematic of the future of our great nation and these aspiring Americans deserve an opportunity to secure a permanent home in our country.”

President Trump should also protect DACA (Deferred Action for Childhood Arrivals) recipients by vowing that the Administration will maintain the DACA program until there is a law to protect Dreamers.

BALCA Cases on PERM Requirements and Recruitment

July 25th, 2017

The Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) recently published three cases on the minimum requirements, recruitment and disqualification of US workers associated with PERM labor certification applications. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to first conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified US workers. If such a worker does respond to the PERM ads, then the employer may not file the PERM labor certification application (Form 9089) but is not required to hire such US worker.

In Matter of MSL, Inc. (7/17/17), BALCA upheld the denial of a PERM labor certification finding that a US worker was improperly rejected for not passing a test where the Form 9089 and recruitment did not disclose a testing requirement, and there was no evidence that the foreign worker was required to take a test. BALCA cited 20 CFR §656.17(i)(1) that provides that “the job requirements, as described [on the Form 9089], must represent the employer’s actual minimum requirements for the job opportunity.” It emphasized that the employer must not treat the alien more favorably than a US worker.

In Matter of Systime Computer Corporation (7/18/17), BALCA overturned the CO’s denial based on a finding that the position was not clearly open to US workers where the Form 9089 PERM labor certification allowed for alternate requirements that were not mentioned in recruitment. On the Form 9089, the employer indicated the requirements of a bachelor’s degree in computer science, engineering or a related field and 24 months of experience. The employer also stated on the form that 24 months as a software designer, developer or tester as an alternative requirement to the experience in computer science or engineering. Also, the employer specified that four years of relevant experience would obviate any educational requirement and finally stated that it would accept any suitable combination of education, training or experience for the position and a combination of degrees, diplomas and experience equivalent to a bachelor’s degree and 24 months of experience. The employer did not include the precise alternate experience requirements described on the Form 9089 in any of the ads. The website ads placed by the employer noted that it “will accept a combination of education and experience equivalent to a bachelor’s degree and 24 months of experience.”

BALCA analyzed Matter of Systime Computer Corporation under 20 CFR§656.10(c)(8), which requires an employer to attest that “[t]he job opportunity has been and is clearly open to any US worker.” It noted that in prior decisions the relevant inquiry under this regulation is whether the employer’s job search website ads and job order “so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker.” It referred to cases denied where the salary was understated or the requirements overstated in the ads. BALCA also noted that in other cases a mere omission of information does not result in a finding that the job is not clearly open to US workers. It found that the omission here was of an equivalent requirement (and not an overstatement of the actual minimum requirements) and that such omission was not sufficient to undermine the employer’s PERM attestation that a position was open to any US worker.

In Matter of Pixar (7/17/17), BALCA applied the reasoning from Smartzip Analytics, finding that a Form 9089 labor certification application cannot be denied on its face based on a failure to provide a duration requirement for special skills listed in Box H.14, short of legally sufficient notice of a requirement to do so. The Form 9089 does not require, or have a specific field to enter, such specific information.

USCIS to Resume Premium Processing for Certain Cap-Exempt H-1B Petitions

July 24th, 2017

The following is an announcement from USCIS’s website regarding its resumption of premium processing for certain cap-exempt H-1B petition:

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

USCIS Announces Return of All 2018 H-1B Cap Cases

July 19th, 2017

Today USCIS announced that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected in our computer-generated random selection process. USCIS previously announced on May 3, 2017, that it completed data entry of all selected cap-subject petitions.

If you submitted an H-1B cap-subject petition between April 3 and April 7, 2017 and have not received a receipt notice or a returned petition by July 31, 2017, you should contact USCIS for assistance.

Federal Court Strikes Down Part of Travel Ban

July 17th, 2017

The U.S. District Court for the District of Hawaii modified its preliminary injunction to prevent the government from enforcing the travel ban, Executive Order 13780, against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. It held that the government’s narrow interpretation of “close familial relationship” was unconstitutional.

The modifications also exclude from the Executive Order refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

USCIS Delays Implementation of International Entrepreneur Final Rule

July 13th, 2017

According to the Federal Register, Vol. 82, No. 131, Tuesday, July 11, 2017, the Department of Homeland Security (DHS) is temporarily delaying the effective date of the International Entrepreneur Final Rule (82 FR 5238). During this time, DHS will obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, ‘‘Border Security and Immigration Enforcement Improvements.’’ The effective date of the original regulation entitled International Entrepreneur Rule, published in the Federal Register on January 17, 2017, 82 FR 5238, is delayed from July 17, 2017, to March 14, 2018. Written comments must be received on or before August 10, 2017.

The original regulation authorizes parole for foreign entrepreneurs who can demonstrate that they will provide a significant public benefit to the United States as a result of economic growth or job creation resulting from their entrepreneurial activities. To qualify, the applicant must be an entrepreneur connected with a start-up entity who is well positioned to advance the entity’s business. The entrepreneur must own at least 10% of the entity at the time of the application and demonstrated that s/he plays an active and central role in the operations and future growth of the entity. Also, the “start-up” entity must have been formed within the five years immediately preceding the date of filing the initial parole application and it must have lawfully done business since its creation and have substantial potential for rapid growth and job creation. There are three ways that an applicant can demonstrate substantial potential for rapid growth and job creation, including any one of the following:

1. Investments from Established U.S. Investors: Investments of capital must be at least $250,000 from U.S. investors (such as venture capital firms, angel investors, or start-up accelerators) with a history of substantial investment in successful start-up entities.

The U.S. organization or individual investor must (1) have made qualified investments of at least $600,000 in start-ups over the prior five-year period; (2) show that subsequent to such investment at least two such start-up entities created at least five qualified jobs or generated at least $500,000 in revenue, with average annualized revenue growth of at least 20%. A qualified job means full-time employment in the U.S. that has been filled for at least one year by a qualifying employee. A qualifying employee includes a U.S. citizen, lawful permanent resident, or other immigrant lawfully authorized to work in the U.S. who is not an entrepreneur of the start-up entity or the parent, spouse, brother, sister, son or daughter of such entrepreneur. Independent contractors do not qualify as employees.

2. Government Grants: Awards or grants of at least $100,000 from Federal, State or local government entities with expertise in economic development, research and development, or job creation;

3. Alternative Criteria: If the applicant only partially meets one or more of the above criteria relating to capital investment or government funding, s/he may still succeed with the parole application if s/he can provide additional reliable and compelling evidence that s/he would provide a significant public benefit to the U.S. upon receipt of the parole status.