Major Policy Shift: USCIS Rescinds Guidance on H-1B Computer Related Positions without Notice or Due Process on the Eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017 – the Eligibility of an H-1B Petition for IT Workers will now Increasingly be based on its LCA Wage Level (read: LCA Level 1 Wages=Problem)

On March 31, 2017 USCIS issued a policy memorandum that superseded and rescinded a 12/22/00 memorandum with guidance on H-1B computer related positions issued by the NSC.  This abrupt change coincidentally uproots established H-1B guidance and processes without notice or due process on the eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017.

The practical impact of this memo will be to increase Requests for Evidence and Denials on the thousands of H-1B petitions filed on behalf of IT professionals, and those with a Level 1 wage marked on their LCA/I-129 petitions are at heightened risk.  The memo is in line with USCIS’ desire to place a greater emphasis on requiring IT Petitioners to list a greater than Level 1 wage on the LCA.  The same concept seems to have been behind the holdings in several recent Administrative Appeals Office decisions denying IT positions on the basis of LCA Level 1 wages.  AAO Decision Examples 1, 2 and 3 (PDFs).

Though Petitioners are not prohibited from paying an H-1B employee more than what is listed on the corresponding LCA, and frequently do, their H-1B petitions may now be denied because the USCIS appeared to have suddenly recalled that “Prevailing Wage Determination Policy Guidance” issued by the DOL (which provides a description of the wage levels) indicates that a Level 1 wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. A Level 1 wage rate indicates:

(1) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment;

(2) that he will be closely supervised and his work closely monitored and reviewed for accuracy: and

(3) that he will receive specific instructions on required tasks and expected results.

For years though, Level 1 wages noted on the LCA have not been an issue, further, the fact that this Level 1 Wage designation issue targets IT workers is clear when comparing USCIS’ Policy Memorandum with a recent AAO case, the latter allowing that not all Level 1 wage designations preclude a proffered position from classification as a specialty occupation:

The issue here is that the Petitioner’s designation of this position as a Level l, entry-level position undermines a finding that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level 1, entry-level position would still require a minimum of a bachelor’s degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty, or its equivalent. That is, a position’s wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(I) of the Act.

It is possible that this specific targeting of the H-1B Information Technology industry was undertaken to satisfy the Trump Administration’s stated intention of halting the “substitution” of American workers at “lower pay”.  If so, it is particularly important to note that most references to “low H-1B wages” usually involve publicly available LCA data and not the actual wage rates paid to H-1B workers, further, there are no vast numbers of American IT workers being replaced by H-1B IT workers; the actual fact is that We. Are. Not. Producing. Enough. STEM. Workers to fill the 480,000+ open computing jobs we have nationwide.

DOL’s Prevailing Wage levels are always updated (normally increased) July 1 of every year: why does it not increase the IT occupational classifications’ prevailing wages this July 1 to an amount acceptable to USCIS?  If an H-1B employer’s selection of Level 1 wages renders certain H-1B occupations ineligible for approval (despite no major issues on this point for the last 10+ years), why hasn’t there been the provision of notice or an allowance for a future implementation date?  Why not issue a Policy Memorandum asking H-1B IT employers to affirmatively select Level 2 (by the way, is Level 2 going to be sufficient as a new minimum?) or higher wages on their LCAs to avoid H-1B denial?

Ultimately, this attack on IT H-1B cases, like all the preceding ones, will be quietly implemented and accepted by IT H-1B workers and their U.S. employers.  It will be unaccompanied by an iota of the public outcry or protests that would occur if a similar upheaval affected Undocumented, Family, Refugee/Asylum Immigration in America.  Again, after accepting the almost unbelievable fact that this major policy shift was announced and implemented without prior notification on Friday, March 31, 2017, the first day that the expected 200,000+ H-1B petitions began to be filed, the vast majority of those Petitioners now noting Level 1 wages on their LCAs but which are actually paying higher wages will just learn to indicate that $90,000 or $150,000 salary, or whatever it actually is, on their employees’ LCAs in lieu of $60,000 or whatever the Level 1 wage is. By this time next year though I predict that the Administration will take the credit for significantly “increasing” H-1B Wages, since the publicly available LCA data will finally reflect the higher salaries actually paid to the workers, and secondly, that we can expect some other novel issue used to target H-1B IT workers.

 

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