Increased Time/Difficulty in Filing H-1B Petitions Likely Due to Burdensome New LCA/ETA Form 9035 Form Rolling Out on November 19, 2018
The Office of Foreign Labor Certification (OFLC) of the U.S. Department of Labor (DOL) announced that the new ETA Form 9035, Labor Condition Application (LCA) for Nonimmigrant Workers, will be fully implemented on November 19, 2018. The existing LCA remains valid and the public can continue to file it until November 19, 2018. Employers or their authorized representatives who are filing an LCA on or after November 19, 2018, must use the revised form. Certified LCAs filed prior to November 19, 2018 will also remain valid and can be used by petitioners to support H-1B filings.
AILA has already submitted comments on the proposed revised form during the Notice and Comment period in October 2017 and June 2018. In the latter, AILA noted that the additional time required to complete the new ETA 9035 had been significantly underestimated by DOL and that, “[w]hile the proposed changes are largely helpful, there are nevertheless areas where the proposed changes may (1) violate regulatory requirements; (2) create unnecessary new burdens on employers; and (3) fail in practice to meet DOL’s stated purpose of providing clarification.”
On 11/1/18, the Compete America coalition has issued a letter to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services raising the issue that, “The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity….”
The letter reiterates the major concerns that my colleagues and I have (frequently) raised, beginning with legal concerns about current H-1B adjudications because USCIS appears to have taken leave of two principles underscoring eligible H-1B petitions, “First, the job offered must be in “…an occupation which requires theoretical and practical application of a body of highly specialized knowledge.” Second, a four-year university degree or graduate or professional degree must be the “usual, common, or typical” requirement for the job. Patterns in H-1B adjudications over the last 18 months suggest other standards are being applied.”
The letter identified “patterns in H-1B adjudications that reflect new agency interpretations inserting salary requirements as an unstated prerequisite“, despite the fact that “nothing in the statute or regulations contemplates or suggests, that USCIS could ever take the position that it per se excludes or disfavors entry-level jobs in an occupation, or young professionals working in jobs in an occupation, as qualifying for H-1B specialty occupation approval.”
The origination of this particular pattern arose about 18 months ago, at the end of March 2017, when USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers. As I’ve previously indicated on this point that the Dept of Labor sets prevailing wage levels for H-1B professions every year in July, in other words, the DOL can and generally does increase these wage levels every year: there was no legitimate statutory or regulatory basis or need for USCIS to have inserted itself in an established wage determination process, nor for it suddenly declare ineligible for H-1B status those jobs with wages otherwise compliant with DOL requirements. This relatively new wage issue seems driven by motives that go beyond simple or logical explanations, especially when we note that the converse argument highlighting the fact that a Petitioner is paying a Level 3 or 4 (highest) wage as an element in establishing Specialty Occupation can be dismissed by USCIS as irrelevant:
Among its other points, the coalition letter also expressed concern as to “Patterns in H-1B adjudications that reflect new agency interpretations beyond the statute’s prerequisites for a “Specific Specialty” of study”. The letter highlights the fact that, “...[n]othing in the statute allows for administrative discretion to restrict a qualifying specialty occupation to only those occupations where “the specific specialty” necessary for the job is only obtainable through completion of a single, exclusive degree.” Despite this, USCIS will normally presume that, “…alternative degree options as the minimum requirement for a job suggest, standing alone, that a specific body of knowledge is not required.”
Quartz India and Harvard Professor’s Insufficiently Researched Proposal on “Fixing the H-1B program”
Quartz India recently published an insufficiently researched proposal by Harvard Professor on “Fixing the H-1B program” in which the Professor erroneously relies on last year’s debunked fake news story claiming the “H-1B minimum wage” is “$60,000“.
To complement wage ranking and to preserve scarce visas for the best uses, America should also raise the H-1B minimum wage from $60,000 to a higher figure like $100,000, perhaps with a few lower thresholds for occupations like social work or entrepreneurship. This minimum level can be designed with automatic adjustments for future years that are based on inflation or changes in average US wages. If a higher minimum wage causes demand to fall short of supply at times, unused visas can be saved and reintroduced when supply becomes again constrained, with visas that sit too long simply expiring. There are downsides to wage floors, such as their mismatch to innovative jobs that may be better served with heavy equity incentives, but minimum wages can provide strong assurances to the public that visas are being put toward best uses.
The Professor appears to have based his magical $60,000 figure on incorrect news articles reporting on U.S. Rep. Zoe Lofgren’s (D-Calif.) proposed legislation last year entitled, the “High-Skilled Integrity and Fairness Act of 2017”. As I had noted on January 31, 2017, there is no $60,000 minimum H-1B wage, and that Lofgren’s legislation was only attempting to increase the level at which an H-1B petitioner could avoid H-1B Dependent status.
And in any case, even if you hypothetically assume that $60,000 was a true figure, there are already simple mechanisms in place increase this level at any time, which in fact have already largely been implemented:
- the Dept of Labor sets prevailing wage levels for H-1B professions EVERY YEAR IN JULY. The DOL can and generally does increase these wage levels every year.
- at the end of March 2017, the USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers.
On the topic of wages, I wish to note that this Administration seems intent on reducing H-1B approvals, especially to Indian IT workers and their Petitioners, and the wage issue is, in my opinion, already addressed and now just an excuse. Otherwise qualified Level 4 (top) wage earning IT H-1B workers are not automatically spared a denial. The H-1B program, as set out by Congress, has been modified repeatedly by several “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing H-1B laws and guidance at the behest of of this Administration, the latter driven by motives that obviously go beyond simple or logical issues like DOL issued wage rates.
Trump Admin’s Proposed Policy Entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” Set to Target the H-1B Program
Bloomberg recently reported that the Administration plans to remodel the H-1B program eligibility criteria from a baccalaureate degree to a discretionary “Best and Brightest” requirement, perhaps more in line with the O-1 Extraordinary Ability program. This would impose substantial and new burdens on H-1B seekers, particularly on IT professionals, and effectively change the H-1B program as we know it.
“The Trump administration plans to narrow the definition of specialty occupation to limit the use of H-1B visas, but it may be limited in how far it can go.
A proposal expected in January from the U.S. Citizenship and Immigration Services would refine the meaning of specialty occupation “to focus on obtaining the best and the brightest foreign nationals via the H-1B program.”
The proposed regulation “would be the biggest changes to the H-1B program since 1990,” when the visa was overhauled by Congress, Sarah Pierce, a policy analyst with the Migration Policy Institute, told Bloomberg Law.
The agency could block entry-level jobs from the program while redefining “employer-employee relationship” to severely curtail staffing companies’ access to the visas.”
Inserting the otherwise innocuous phrase “Best and the Brightest” (“B&B”) within this proposed rule does nothing to alleviate the suspicion with which it is met. This is understandable, considering that for the last 1.5 years this Administration has tasked USCIS with issuing “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing laws and guidance. The ultimate result has been a targeted effort to reduce the use of H-1Bs visas by Indian IT professionals and their employers. IT jobs paying Level 1 prevailing wages and common occupational classifications such as Computer Programmers and Computer Systems Analysts now face an almost automatic presumption of ineligibility. Third-party job site consulting assignments are scrutinized more heavily and are more likely to be denied. Deference is no longer given to extensions of previously approved H-1B cases, even if there have been no changes in employment. The standard of evidence in filing H-1Bs seems to have risen overnight from the “Preponderance of the Evidence” to “Beyond a Shadow of a Doubt”.
As a result of USCIS’s recent changes to the H-1B program, Requests for Evidence and denial rates for IT workers have increased nationwide. But this new proposed policy promises to make matters even worse, if that’s possible.
USCIS announced today that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning 9/11/18, will be expanding this temporary suspension to include certain additional H-1B petitions. The suspension is expected to last until 2/19/19.
Trump administration indicates that it will terminate Work Permits (EADs) for H-4 Spouses of H-1B Workers
USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions
“The U.S. Citizenship and Immigration Services’ (USCIS) most recent cost and schedule baseline, approved in April 2015, indicates that its Transformation Program will cost up to $3.1 billion and be fully deployed no later than March 2019. This is an increase of approximately $1 billion with a delay of more than 4 years from its initial July 2011 acquisition program baseline. In addition, the program is currently working to develop a new cost and schedule baseline to reflect further delays. Due to the program’s recurring schedule delays, USCIS will continue to incur costs for maintaining its existing systems while the program awaits full implementation. Moreover, USCIS’s ability to achieve program goals, including enhanced national security, better customer service, and operational efficiency improvements, will be delayed.…Given the history of development for the Transformation Program and the subsequent commitment of additional resources for a new system, it is more important than ever that USCIS consistently follow key practices in its system development efforts. For example, the program has already reported realizing risks associated with deploying software that has not been fully tested, such as system bugs, defects, and unplanned network outages. If the agency does not address the issues GAO has identified in prior work, then it will continue to experience significant risk for increased costs, further schedule delays, and performance shortfalls.”
USCIS fired another broadside into the H-1B IT Consulting Industry with yesterday’s Policy Memo PM-602-0157 entitled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. The policy memo is effective February 22,2018 onwards and will – no surprise here – create even more obstacles for Petitioners of H-1B workers who will be employed at one or more third-party worksites (in other words, U.S. IT Consulting companies employing H-1B workers).
In summary, the memo calls for increased scrutiny on H-1Bs cases involving third-party consulting assignments (despite the fact that since 2010’s Neufeld Memo, establishing an approvable H-1B for third-party consulting cases has always been extremely difficult, with USCIS often requiring, in my opinion, the Petitioner to establish its case beyond the legally required preponderance of the evidence standard). The memo warns that USCIS will require additional end-client contracts/statements and other documentation, perhaps even with the initial petition itself. Even if the Petitioners can overcome these additional burdens, USCIS warns that it will only grant an approval through the duration established (this likely means more one year approvals versus three year). This specific reference to a shortened H-1B duration is a consistent theme underscoring several USCIS policy changes since Matter of Simelio Solutions, I assume, to increase the complexity, cost and inconvenience relating to hiring H-1B workers.
The memo also burdens H-1B Petitioners with establishing eligibility for two cases per H-1B employee: the memo includes a formalized restatement of a policy USCIS’ RFE’s had already adopted in the past few months: even if an H-1B petition is approved, when an extension of said petition is filed (1-3 years later), the Petitioner will be required to affirmatively provide evidence that it complied with the terms and conditions of the past duration of H-1B employment.
USCIS’ H-1B Policy Memo makes it clear that it intends to keep beating the U.S. IT Consulting Industry like a rented mule. Is what it actually means to focus on “Merit Based” Immigration? Has no one deliberated on the only logical implications of this short-sighted (and presumably political) action? Not only are such actions negating our own global leadership in the STEM fields, but most of the IT jobs that could be filled by H-1B consultants (who are paying U.S. taxes), could and would easily be outsourced abroad, because we are not producing sufficient numbers of American STEM graduates.
Jonathan Withington, chief of media relations for USCIS indicated to mcclatchydc.com that, “…USCIS is not considering a regulatory change that would force H-1B visaholders 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…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.”
DHS Appears to Be Contemplating a Major Change to 6+ Year H-1B Extensions under AC21: Up to 1 Million H-1B Holders Could Be Affected
The Department of Homeland Security (DHS) appears to be contemplating a major change to 6+ year H-1B Extensions, an act that would have major implications in the lives of the approximately 1 Million H-1B holders in the U.S. who are waiting for a green card. To effect such a change, all DHS would need to do is continue its policy of reinterpreting any language and/or guidance it considers imprecise in a way that negatively affects the H-1B visa program. And in this case it apparently seeks to reinterpret the words “may grant” in AC21 Section 104(c), a provision that allows for up to three (3) year H-1B Extensions for certain I-140 holders (mainly Indian nationals, coincidentally). Such a reinterpretation would allow DHS to effectively neuter H-1B extensions under AC21 Section 104(c), however, because DHS does not currently appear to be able to reinterpret the word “shall” in AC21 Section 106(a), one (1) year H-1B Extensions should remain untouched and available.
A reinterpretation of AC21 Section 104(c) by DHS, if undertaken, would align harmoniously amongst its other recent attempts to make H-1Bs prohibitively complicated, expensive and more frequently subject to DHS’ scrutiny (i.e. the trending query of the month). That stated, please note that the American Immigration Lawyers Association (AILA.org) has indicated that DHS has not issued a formal announcement about any such change, that such a change would require a formal rulemaking procedure, and lastly, that such changes could be subject to litigation.
Ultimately, instead of scapegoating Srinivas from Hyderabad for daring to fill one of the 480,000 open computing jobs nationwide, we should be asking ourselves why Suzy from Ohio is majoring in Italian Art History instead of Computer Engineering. There is a very real and obvious problem with education in our country, but it is not the H-1B Program or H-1B workers, rather, the issue is that We. Are. Not. Producing. Enough. STEM. Workers.
BELOW VIA AILA.ORG
Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process have been met. These two provisions are summarized below:
H-1B EXTENSION BEYOND SIX-YEAR LIMITATION UNDER AC21 AC21 Provision Section 104(c) Section 106(a) Requirements for an H-1B Extension beyond the Sixth-Year Enables a three-year H-1B extension beyond the six-year maximum period if an H-1B worker:
(i) has an approved employment-based immigrant visa petition (I-140 petition) under the EB-1, EB-2, or EB-3 visa category, and
(ii) is eligible to be granted lawful permanent resident status but for per country limits on visa availability.
Enables a one-year H-1B extension beyond the six-year maximum period if:
(i) 365 days or more have passed since the filing of a labor certification application on the H-1B worker’s behalf, or
(ii) 365 days or more have passed since the filing of an I-140 petition.
Relevant Statutory Language Section 104(c) provides that the DHS Secretary (formerly the Attorney General) “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated. Section 106(a) provides that the maximum six-year limit “shall not apply” to an H-1B worker who meets the requirements of this section and that the DHS Secretary “shall extend” the stay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application.
DHS is reportedly looking at whether it can stop approving H-1B extensions for H-1B workers who meet the requirements of section 104(c), by reinterpreting the “may grant” language as discretionary, and therefore that DHS may, but is not required to, approve such H-1B extensions.
Notably, as outlined above, section 106(a) of AC21 provides that the maximum six-year period of H-1B status “shall not apply” to H-1B workers who qualify for an H-1B extension under section 106(a) and that the DHS Secretary “shall extend” the stay of H-1B workers who meet the requirements in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application. This provision, with its use of the word “shall,” should be read as mandatory, and thus DHS would be required to approve the extension for those H-1B workers who met the requirements of section 106(a). As such, H-1B workers who could potentially be impacted by the reported proposed changes to AC21 section 104(c) should be able to continue to extend their H-1B status under section 106(a) of AC21, provided they have met the required milestones in the LPR process. This is even true for H-1B workers who initially did not meet the requirements of section 106(a) but who now, through the passage of time, qualify for the one-year extension.”
USCIS indicates that it has “resumed premium processing today for all H-1B visa extension of stay petitions. Premium processing is now available for all types of H-1B petitions.” This includes H-1B amendments, extensions, transfers etc.
How the Trump Admin’s ‘Merit-Based’ Immigration System actually works: Kill or Handicap the H-1B Visa
Reuters has a great piece on how Trump’s infamous ‘Merit-Based’ Immigration System actually works – issue a record # of queries, delays and denials on US companies’ petitions filed for their professional employees: Doctors, Engineers, IT and others. That these substantial changes impeding and eliminating aspects of the H-1B program have been undertaken without Congressional authorization is apparently of little concern to the Admin.
“Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.”
In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.
Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.
As I’ve stated before: H-1B workers have filled our massive skills gap and created intellectual property, businesses and jobs for America. They are Makers, not Takers. It is therefore particularly disheartening to witness illogical attempts to reject these professionals, especially when other nations are outcompeting the U.S. in eagerly recruiting STEM workers.
As a Country, we need to shake off the illusion that we can “coast” through this increasingly competitive world on the basis of our previous generation’s achievements. The future of our Nation and our Industry lie in our leadership within the STEM sectors. Instead of rejecting or delaying tens of thousands of these high-skilled H-1B immigrants every year due to insufficient H-1B Cap numbers, newly created/surprise “Level 1” wage issues, or making these professionals wait up to 12 years for a green card, we should be bending over backwards to facilitate their immigration.