H-1B Visas and the Level 1 LCA

January 16th, 2018

In an unprecedented move, in 2017 USCIS issued requests for evidence (RFEs) that challenged the professional nature of an H-1B petition’s position if it were based on a Labor Condition Application (LCA) with a level 1 prevailing wage. My office filed responses to these RFEs with copious and compelling arguments for why a level 1, entry level, position is still a specialty occupation for H-1B purposes.

Some employers may be inclined to raise the prevailing wage to a level 2 to avoid such a challenge. However, this is risky, since an employer must base its designation on the actual requirements of the position and can be penalized for failing to provide accurate information. A prevailing wage assessment includes the level of education, experience requirements and whether there are any supervisory duties and special skills.

The employer may file an H-1B petition based on an LCA with a prevailing wage assignation that is based on an actual determination from the Department of Labor. Under the Safe Harbor rule, if the case is audited, the DOL may not challenge the prevailing wage determination. Most employers do not obtain a prevailing wage determination though and instead prepare themselves to justify the level they chose if audited.

USCIS Reverses Course on H-1B Extensions Beyond Six Years

January 10th, 2018

On Monday, January 8, 2018, USCIS reversed itself on its stance regarding H-1B extensions. Over New Year’s weekend, USCIS stated that it was considering terminating certain H-1B extensions for longer than six years. However, on Monday its chief of media relations announced:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.” ”

This is very welcome news, since the termination of the H-1B extensions beyond six years would have wreaked havoc on the US’s economy and harmed the careers and lives of hundreds of thousands of H-1B foreign workers and their families.

Department of Homeland Security Reportedly Considering Changes to H-1B Extensions Beyond Six Years

January 7th, 2018

Thousands of H-1B workers, including upwards of 500,000 H-1B workers from India, may be unable to continue working indefinitely in the US, and may need to wait abroad for years, if a proposal by the Trump administration not to extend H-1B visa status beyond the six-year limit for those waiting for permanent residency (green card) is implemented.
It is reported that the Department of Homeland Security is considering new regulations that would prohibit H-1B certain extensions beyond the statutory six-year maximum as part of President Trump’s “Buy American, Hire American” initiative.

Under 8 CFR §214.2(h)(13)(iii), foreign nationals are allowed six years of H-1B status with each petition requesting up to three years at a time. However, under two provisions of the American Competitiveness in the Twenty-First Century Act (AC21), indefinite extensions are allowed for foreign nationals who are the beneficiaries of a pending legal permanent residency (“green card”) process. According to PL 106-313, §106(a), AC21, H-1B status shall be extended in one-year increments indefinitely beyond the six-year limitation if a labor certification or Form I-140 immigration visa petition was filed at least 365 days prior to the expiration of H-1B status. According to §104(c) of this Act (and a USCIS policy memo by Yates, Assoc. Dir. Operations, USCIS), H-1B status may grant an extension in three-year increments indefinitely beyond the six-year limitation for beneficiaries of approved EB-1, EB-2 or EB-3 Form I-140 immigrant visa petitions who are unable to file to adjust status to legal permanent residency or acquire an immigrant visa abroad because of per country limitations (immigrant visa number backlogs).

Because there is an extremely long wait for certain green card applicants, particularly for foreign nationals who were born in India, hundreds of thousands of these foreign workers from these countries may wait an average of 10 to 12 years to obtain legal permanent residency. There are 400,000 immigrant visa numbers available each year for a foreign national to obtain legal permanent residency based on employment and these visas are allocated evenly among all nations. This inevitable results in a backlog for nationals of high demand countries such as India. Currently, the US Department of State Visa Bulletin shows that the priority date, or place in line, for foreign nationals from India in the EB-2 category is November 22, 2008, and for EB-3 is November 1, 2006. Numbers do not move consistently each month and some months they may freeze or even regress. Because of the law allowing for indefinite extensions of H-1B status until their green card processing is completed, foreign nationals are allowed to remain in the US and work during this period.

DHS is considering ending the extensions of H-1B status under §104(c), by reinterpreting the “may grant” language as discretionary. However, §106(a) of AC21 provides that the six-year H-1B period “shall not apply” to H-1B workers who fall under this section and that DHS “shall extend” their H-1B status in one-year increments until a final decision has been made on their application to adjust status to legal permanent residency. The word “shall” should be read as mandatory, and therefore DHS would be compelled to grant indefinite one-year extensions under §106(a). Therefore, H-1B workers who would not qualify for the three-year indefinite extensions under §104(c) could still be eligible for indefinite one-year increments of H-1B status under §106(a).

In order for such changes to be implemented, DHS needs to follow the Administrative Procedures Act and issue a proposed regulation and follow the notice and comment rulemaking procedures. This process could take many months. Furthermore, any such proposal could be the subject of litigation, which is almost undoubtable.
Although it has becoming increasingly challenging to obtain H-1B status, including increasing fees and setting higher standards for proving a position is a specialty occupation, demand for H-1B visas remains high. US employers allege that there is a dearth of qualified US workers with at least a bachelor’s degree in a STEM (science, technology, engineering, math) field.

There are many compelling arguments for retaining the H-1B extension rules. Chief among them is that the H-1B foreign-born skilled worker pays US taxes, bolsters the country’s economy and fills a need for STEM workers. Many technology experts have warned that if the US excludes them, then it will only benefit their home countries, since they will simply return home and start successful new companies, such as Facebooks and Ubers, something that US technology experts state is already happening in China.

The H-1B Master’s Cap Is Not for Any US Master’s Degree

December 28th, 2017

There are 85,000 H-1B visa numbers available every year under the H-1B cap, with 20,000 set aside for H-1B petitions where the beneficiary has earned a US master’s or higher degree (INA §214(g)(5)(C); 8 CFR §214.2(h)(8)(ii)(B)). For the US master’s or higher degree to qualify, the institution conferring the degree must be an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 USC §1001(a)), which requires, inter alia, that the school be public or nonprofit and accredited. The consequences are dire if the petition is denied on this basis, since it will bar the employer from filing a new H-1B petition subject to the statutory cap until the following year.

The Higher Education Act at 20 USC § 1001(a) defines a US institution of higher education as an educational institution in any state that:

(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate or persons who meet the requirements of section 1091(d) of this title;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

USCIS relies on the National Center for Education Statistics (NCES) to assist it in making a determination on the school’s eligibility. NCES is the primary federal entity for collecting and analyzing education data in the US and is part of the US Department of Education and the Institute of Education Sciences. At its website at http://nces.ed.gov/collegenavigator/, it provides information about whether the school is public or nonprofit and the number of years of its educational program.

If USCIS makes a determination under 8 CFR § 214.2(h)(8)(ii)(B) that the educational institution is not covered under US master’s cap for H-1B purposes, then it will not refund the filing fees in denying the case. Also, since H-1B cap petitions are filed pursuant to a lottery because of the historic demand far outstripping supply, there is no chance that an H-1B visa number would remain available so that the petitioner could refile under the bachelor’s cap for that fiscal year. Instead, the petitioner would have to wait to file in April of the following year.

USCIS Issues Report on Trends in H-1B Filings

December 27th, 2017

USCIS has issued a report of statistics on H-1B filings from FY2007 and FY2017, including the number of petitions filed and approved and the countries of birth, age, occupation, industry, annual compensation, and education. The FY2017 data is through June 30, 2017, and a large portion of the FY 2017 petitions are still pending as of the date of this report.

For the full year of 2016, it received 399,349 petitions and approved 348,162. For FY2017 USCIS has received 336,107 and approved 197,129 as of June 30th. Since 2007, the beneficiaries of these H-1B petitions have been overwhelmingly from India with 300,902 filed for Indian nationals out of the total 399,349. China comes in second in 2016 with 35,720 filed for its nationals. For 2016, 281,017 petitions were filed for computer related fields. Also, in 2016, the breakdown of the education of the beneficiaries was 180,777 for a bachelor’s degree, 180,961 for a master’s degree, 11,880 for a professional degree and 25,602 for a Ph.D.

USCIS Rescinds Deference Policy for I-129 Extensions

October 24th, 2017

USCIS issued a policy memorandum on October 23, 2017, that abandons its long-held “due deference” policy for I-129 extensions, such as for H-1Bs, L-1As and L-1Bs. The policy memorandum rescinds the memorandum of April 23, 2004 titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015, policy memo titled “L-1B Adjudications Policy.” The memorandum is immediately effective and makes it very clear that petitioner has the burden of proof where an extension of nonimmigrant status is sought, and that the same level of scrutiny to both initial and extension petitions will apply, even where the parties and the facts have not changed from the original filing.

Premium Processing Resumed for All H-1B Petitions

October 3rd, 2017

USCIS announced that as of October 3, 2017, it has resumed the premium processing for all H-1B petitions, including the conversion of pending petitions. On September 18th USCIS resumed premium processing of H-1B petitions subject to the cap and on July 24th it reinstated premium processing for H-1B petitions filed by cap-exempt petitions based on the Conrad 30 Waiver program and interested government agency waivers.

Premium processing expedites the adjudication of a petition and USCIS is required to provide a decision or request additional evidence within 15 calendar days. If it fails to meet this deadline then it must return the premium processing fee.

Premium processing is particularly important for the beneficiaries of pending H-1B extension petitions, since they are only granted 240 days of continued employment authorization after the expiration date of their most recent H-1B approval notice. They are allowed to remain in the US after this 240-day period if the H-1B extension petition was filed before their H-1B status expired, but their employment authorization terminates after this period.

It is not necessary for an H-1B petition to change employers to be approved before the beneficiary may work for the new petitioner. The beneficiary may work after USCIS receives the H-1B petition from the new employer pursuant to portability.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

September 18th, 2017

On September 18, 2017, USCIS reinstated premium processing for all H-B petitions subject to the fiscal year 2018 cap, including the 20,000 additional petitions for foreign workers with a US master’s degree or higher educational degree. Previously, USCIS had resumed the premium processing of H-1B petitions filed on behalf of physicians under the Conrad 30 program as well as interested government agency waivers and certain other H-1Bs that are not subject to the cap.

Premium processing remains suspended for all other H-1B petition, such as extensions of stay and changes of employer. Beneficiaries of pending H-1B extension petitions are granted up to 240 days of employment authorization past the end date on their current/prior petition. Once this period expires, they may remain in the US but they cannot work. Beneficiaries of H-1B petitions to change employers may start working for the new employer once its H-1B petition is filed (portability).

Parent Company Not Part of H-1B ACWIA Filing Fee Determination

September 11th, 2017

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) created a filing fee that certain petitioners must pay when filing an H-1B petition with US Citizenship and Immigration Services (USCIS). This fee is $1,500 for each such petition, except that the fee is half the amount where the petitioner has no more than 25 full-time equivalent (FTE) employees who are employed in the US (determined by including any affiliate or subsidiary of such employer). The terms “affiliate” and “subsidiary” were not defined at the time of ACWIA’s passage. In a policy memo dated August 9, 2017 (“Definition of “Affiliate” or Subsidiary” for Purposes of Determining the H-1B ACWIA Fee) USCIS provides definitions “affiliate” and “subsidiary”to determine the appropriate ACWIA fee.
What is most notable about this formula is that USCIS is no longer considering the FTE employees of the parent company when determining the amount of the ACWIA fee. The policy memo states:

“When determining the appropriate amount of the ACWIA fee, officers should count FTE employees of the petitioning employer and the petitioning employer’s affiliates and subsidiaries, . . . . Officers should not include FTEs employees from the petitioning employer’s parent company or the parent(s) of any affiliates. In other words, officers should count down and horizontally, including the petitioning employer’s other affiliates and subsidiaries, but not up toward its parent or its affiliates’ parent(s).”

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.