EB TRACK: H1B CURRENT ISSUES

Matthew D. Stump, Oklahoma City, OKRobert H. Cohen, Columbus, OH

Elaine Kimbrell, Metairie, LAMarcine Seid, Palo Alto, CA

Buy American Hire American (BAHA) and Attack on H-1Bs

• H-1B Denial and RFE Rates at All-Time Highs

• Denial rates for H-1Bs for Initial Employment - 6% in FY 2015 to 32% in the first quarter of FY 2019

• Denial rates for H-1B Extensions - 3% in FY 2015 to 18% in the first quarter of FY 2019

• RFEs Rates for all H-1Bs – 22.3% in FY 2015 to 60% in the first quarter of FY 2019

• Source: National Foundation for American Policy (NFAP) analysis of USCIS data in the H-1B Employer Data Hub.

Top Ten Reasons for RFE on H-1B1. Specialty Occupation

2. Employer-Employee Relationship

3. Availability of Work (Off-site)

4. Beneficiary Qualifications

5. Maintenance of Status

6. Availability of Work (In-House)

7. LCA Corresponds to Petition

8. AC21 and Six-Year Limit

9. Itinerary

10. Fees

Source: Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEsWere Issued for H-1B Petitions in Fiscal Year 2018

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/understanding-requests-for-evidence-h-1b-petitions-in-fiscal-year-2018.pdf

Using the Level 1 Wage

Prevailing Wage Determination Policy Guidance

•Worksheet for Use in Determining OES Wage Level/Taking about Wage Levels•Changes

•Highlights and Trends from the H-1B Level 1 RFEs

•Duties beyond Level 1• Consider walking the adjudicator through Steps 1-5 of Appendix A of the Wage

Guidance

• Under 8 CFR §214.2(h)(4)(i)(B)(2), USCIS is directed only to “determine if the LCA involves a specialty occupation as defined in INA and to determine whether the foreign national qualified to perform the services as decided in the specialty occupation. Though USCIS may disregard the LCA when making this determination, its scope of review must nonetheless focus solely on a determination as to whether the occupation is a specialty occupation. Nothing in 8 CFR

• §214.2(h)(4)(i)(B) authorizes USCIS to review the appropriateness of the wage level.

• Term “wage level” absent from 8 CFR §214.2(h)

• Also, the specialty occupation criteria makes no mention of a review of the LCA

Level 1 RFE Types

Level 1 is Not a Specialty Occupation

• Nothing in the statue or regulations suggests that entry-level positions in these occupations change the character of the occupation itself.

• This RFE argument assumes that specialty occupations must always require additional experience beyond the degree requirement and that the attainment of a degree is insufficient to instill the knowledge necessary to perform the duties of the occupation.

Duties Beyond Level 1 and Not Specialty Occupation

• “There is no inherent inconsistency between an entry-level position and a specialty occupation. For some occupations, the "basic understanding" that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor's degree in a specific specialty. Most professionals start their careers in what are deemed entry-level positions. That doesn't preclude us from identifying a specialty occupation.” See Matter of B-C-, Inc., ID#1139516(AAO Jan. 25, 2018) (determining that the position was properly classified as a Level I wage).

Specialty Occupation RFEs

• OOH says normally or usually requires a degree and not always

• See Next Generation Technology vs. Johnson, No. 1:15-cv-05663, 2017 WL 4685275 (S.D.N.Y. Sept. 29, 2017) (“[T]his Court is at a loss to see a ‘rational connection’ between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’s determination that ‘computer programmers are not normally required to have a bachelor’s degree.’”) (citing Berrios v. Holder, 502 F. App’x 100, 101 (2d Cir. 2012)).

• Wrong SOC

• Degree does not relate to the position

• Computer and IT related positions• See USCIS Policy Memo – PM-602-0142, March 31, 2017,

Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions.”

What is a Specialty Occupation

Must Satisfy ONE of the following Criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; or

• 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; or

• The employer normally requires a degree or its equivalent for the position; or

• The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Example – Network and Computer Systems Administrators • OOH - Although some employers require only a postsecondary

certificate or an associate’s degree, most require a bachelor’s degree in a field related to computer or information science. There are degree programs that focus on computer network and system administration. However, because administrators work with computer hardware and equipment, a degree in computer engineering or electrical engineering usually is acceptable as well.

• USCIS Denial - While the OOH indicates that most Network and Computer Systems Administrators obtain a degree (either a bachelor's or an associate's degree) in a field related to computer or information science, the OOH does not state that at least a bachelor's degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation. The OOH further includes a range of educational credentials with those less than a bachelor's degree in a specific specialty may qualify an individual to perform the duties of a Network and Computer Systems Administrator.

Computer Programmer Memo

• Based on the current version of the Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii)

• AILA Practice Pointer – Overcoming H-1B Computer Programmer RFE;s AILA Doc. No. 18061101

Off-site Employment of H-1B Workers

• Part 5. Question 5 of the I-129H:• “Will the beneficiary (ies) work for you off-site at

another company or organization’s location?”

Section 4. of the H-1B Data Collection Supplement:

Off-Site Assignment of H-1B Beneficiaries:

“The beneficiary of this petition will be assigned to work at an off-site location for all or part of the period for which H-1B classification is sought”.

What is an off-site location?

• A location that is owned, occupied or controlled by a party (usually an end-user client) other than the petitioning employer

• An Off-site location doesn’t include a branch office or other premise remote from the main office or headquarters of the employer

Off-site Employment of H-1B Workers

• https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

• The beneficiary will be employed in a specialty occupation. This means that the petitioner has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition; and

• The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

Off-site Employment of H-1B Workers

• Scenarios involving a third-party worksite generally make it more difficult to assess whether the petitioner has established that the beneficiary will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist.

• Based on the agency’s experience in administering the H-1B program, USCIS recognizes that significant employer violations—such as paying less than the required wage, benching employees (not paying workers the required wage while they wait for projects or work) and having employees perform non-specialty occupation jobs—may be more likely to occur when petitioners place employees at third-party worksites.

Contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation

...the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition.

The petitioner will need to show that:

• The petitioner has a specific work assignment in place for the beneficiary;

• The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and

• The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

Additional Evidence of Actual Work Assignments

• Evidence of actual work assignments, which may includetechnical documentation, milestone tables, marketing

• Copies of relevant, signed contractual agreements betweenthe petitioner and all other companies involved in thebeneficiary’s placement…

• Copies of detailed statements of work or work orders signedby an authorized official of the ultimate end-client companywhere the work will actually be performed by thebeneficiary.

Additional Evidence of Actual Work Assignments

A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.

Contracts as evidence to demonstrate the employer will maintain an employer-employee relationship with the

beneficiary for the duration of the requested validity period.

• Evaluating the chain of contracts and/or legal agreements between the petitioner and the ultimate third-party worksite may help USCIS to determine whether the requisite employer-employee relationship exists and/or will exist.

• Evidence of control by the H-1B petitioner, of the daily activities of the H-1B worker is crucial to demonstrating the continued existence of the employer-employee relationship)

Itinerary as a regulatory requirement

• Title 8 CFR 214.2(h)(2)(i)(B) requires petitioners to file an itinerary with a petition that requires services to be performed in more than one location.

• There is no exemption from this regulatory requirement.

• An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services. Adjudicators may deny the petition if the petitioner fails to provide an itinerary, either with the initial petition or in response to a Request for Evidence

Validity period of approved petition

• The petitioner must establish that the above elements will more likely than not continue to exist throughout the duration of the requested H-1B validity period.

• USCIS may limit time period

• Authorized period will be determined by contracts, statements of work, and other similar types of evidence

Premium processing

• Why premium process?• End of deference - (PM-602-0151)

• NOID memo - (PM-602-0163)

• Increased scrutiny

• Long processing times – over 6 months in WAC and EAC

• Driver’s license expirations

MANAGING THE H-1B CAP

New Final Rule Governing H-1B Cap Petitions

(84 FR 888, 1/3/2019 and AILA Doc. 19013035)

• Registration Requirements

• Allocation of H-1B Cap Numbers

Tips to Avoid Rejection of the H-1B Petition

F/M/J Unlawful Presence

• Policy Memorandum on Unlawful Presence• Effective August 8, 2018

• Impacts Students Change of Status to H-1B

• Equates violation of status to unlawful presence

• Finding of unlawful presence retroactive to later of effective date or date of status violation

• Challenge pending in Federal Court • Guilford College v Nielson, M.D.N.C Cv# 18-891

• https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

• Denials• Denial ignores facts in the record and reaches

conclusions not warranted by the administrative record.

• Denial misinterprets or misapplies the statute or regulations

• Delays• Delay is unreasonable and causes harm to the

Applicant/Petitioner• Special considerations that require an expedited adjudication

• Age out, adjustment application not protected by CSPA

• Nonimmigrant age out, i.e. change of status from H-4 to F-1

• Other specific facts peculiar to the client that require expedited adjudication (or simply adjudication within a reasonable period)

When To Consider Federal Litigation

• Cost, EAJA fees when appropriate

• Council Practice Advisory: Requesting Attorneys’ Fees under the Equal Access to Justice Act

• Requirements• Must be the prevailing party• Government’s litigation position is not substantially justified• Small business or individual

• Individual’s net worth less than $2 million• Business, less than 500 employees, net worth less than $7 million

(balance sheet net assets)

• Retaliation concerns• Experience suggests retaliation is not a major concern

• Publicity

• Possible settlement

Client Concerns with Litigation

• Retaliation concerns• Experience does not suggest retaliation is a major concern

• Publicity

• Possible settlement

III. Client Concerns with Litigation

• Re-file the petition • Not available for cap subject petitions

• Administrative Appeals Office

• Motion to Reconsider or Reopen

• Ability to supplement the record

Alternatives to Litigation

Questions