Monique Kornfeld, Immagration Lawyer

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).”

DACA Rescinded as of March 5, 2017

September 5th, 2017

The Trump administration has terminated Deferred Action for Childhood Arrivals (DACA) as of March 5, 2017. It will reject all new applications for DACA status as of today but will process applications that have been filed as of today (the date of the official USCIS memo).

USCIS’s official “Memorandum on Rescission of Deferred Action for Childhood Arrivals” dated March 5, 2017, states that effective as of today, USCIS will do the following:

•Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
•Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
•Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
•Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
•Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
•Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
•Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
•Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

USCIS to Expand In-Person Interviews for Certain Residency Applicants

August 30th, 2017

As of October 1, 2017, USCIS will begin expanding in-person interviews for certain applicants for legal permanent residency. In particular, as of October 1st, USCIS will start requiring interviews for (1) Form I-485 applicants for adjustment of status to legal permanent residency whose I-485s are based on employment and (2) refugees and asylees (Form I-730) who are in the US following to join a principal asylee or refugee.

USCIS states that this policy will strengthen the integrity of our immigration system and provide it with the opportunity to verify information. However, these interviews are not only unnecessary but will only exacerbate the already tremendous backlog for interviews for family-based applicants for adjustment and for those applying to naturalize. It can take approximately six to eight months for an I-485 applicant based on marriage to obtain an interview. The extent to which these new misguided policy could slow this process down further is very troubling. Also, for employment-based I-485 applicants, who currently are not interviewed unless there is an important issue that must be verified, this expansion will not assist in properly adjudicating whether the applicant is working at the sponsoring company, the key issue for such a case. If USCIS is serious about fraud issues, it should conduct ad hoc investigations to ensure such employment.

Networking is Overrated: Focus on Achievements

August 27th, 2017

In today’s NYT’s editorial section (https://www.nytimes.com/2017/08/24/opinion/sunday/networking-connections-business.html?ref=opinion) Adam Grant writes, “Networking is overrated. Achievement is a magnet to mentors and a beacon to backers.” He notes that networking alone leads to “empty transactions” and not “rich relationships,” which bring the real rewards. He notes that it is important to first have an impressive track record and contribute something of value. He also states that self-promotion is distasteful and that we should promoting ideas instead of ourselves.

This is a wonderful message, but for attorneys, this can be especially difficult. Our relationships with our clients are confidential and private. I certainly could not publicize the approval of a green card for a particular client through USCIS (unless my client agreed). Attorneys do win awards and write articles, but the bulk of our valuable work is getting excellent results for our clients.

The basic rule that seems to have worked since time immemorial for all industries is to treat your clients like royalty, be honest, conscientious and caring and take great pride in your work. Also, it is important to develop deep relationships with professionals in complementary areas so networking still plays a valuable piece in one’s marketing campaign.

How should attorneys use LinkedIn in to promote their businesses? They should engage in less self-promotion and more discussion about ideas, law, policies and current events.

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.