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.