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Two of our Appeals of L-1B Specialized Knowledge Worker Denials Were Sustained by the AAO

Three months ago, two L-1B Specialized Knowledge Worker petitions I filed for a client in the manufacturing sector were erroneously denied by USCIS’s California Service Center.  However, both of my appeals of these denials were expeditiously sustained/approved by the AAO, which validated our belief that USCIS’s CSC had improperly denied these cases.

Unfortunately, victories as in this case are quite rare: only six other L-1B appeals have been sustained by the AAO thus far in 2018.

In this particular case, my client’s failure to secure the temporary transfer of two of its L-1B Specialized Knowledge Engineers would have had a catastrophic impact on its US manufacturing operations, in which it has already invested tens of millions of dollars.  Dozens of its well-paid American employees would have likely seen their jobs transferred to China instead.  Though this possibility was thankfully averted by the AAO on an expedited basis a few days ago, USCIS’s error required the Petitioner to waste its time and money while undermining its confidence in our immigration system.

The AAO decisions summary:

The Petitioner, a manufacturer and wholesaler of industrial power generators, seeks to temporarily employ the Beneficiary as a “Senior Product Development Engineer – R&D” under the L-1B nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the Act) § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1B classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee with “specialized knowledge” to work temporarily in the United States.

The Director of the California Service Center denied the petition, concluding that the Petitioner did not establish, as required, that the Beneficiary possesses specialized knowledge, that he was employed abroad in a capacity that was managerial, executive, or involved specialized knowledge, or that he would be employed in a specialized knowledge capacity in the United States.

On appeal, the Petitioner contends that the Director overlooked key evidence and that the denial decision was factually flawed, improperly reasoned, and did not apply the preponderance of the evidence standard to the case.

Upon de nova review, we will sustain the appeal.

A beneficiary is considered to be serving in a capacity involving specialized knowledge with respect to a company if the beneficiary has special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B).

The Beneficiary has been employed by the Petitioner’s parent company as a product development engineer for more than one year and the record establishes that he was required to complete at least 750 hours of internal training followed by months of supervised on-the-job experience in the company’s products, manufacturing processes, research and development and prototyping techniques, and proprietary digital control technologies prior to receiving a promotion to this position. The Petitioner has submitted detailed, consistent, and credible descriptions of his training and experience which show how he gained specialized knowledge in these areas which could not be readily transferred to another employee in the Petitioner’s industry, is distinct in comparison to that possessed by other product development engineers within the foreign company, and is advanced compared to that possessed by the Petitioner’s current U.S.-based engineers. The Petitioner has also explained and documented the Beneficiary’s special assignments, which included developing a method to streamline the design and prototyping process for new products, and performing ongoing research and development of the company’s products to meet increasingly stringent environmental emissions standards. The Petitioner described in detail why the Beneficiary’s prior assignments make him uniquely qualified to undertake the offered position in the United States.

Further, the record sufficiently demonstrates that the proposed position in the United States requires an employee who possesses the Beneficiary’s specialized knowledge of the company’s products, research and development processes, and manufacturing techniques. The Petitioner has explained and documented the imminent expansion of its U.S. manufacturing capabilities, which will require the deployment of new equipment and machinery currently used by its foreign parent company, extensive research and development work associated with the introduction of a new product line, redesign of existing products to comply with new U.S. emissions standards, and the training of new U.S. staff who will be hired to support these increased manufacturing and product development activities. It has shown that the Beneficiary’s specialized knowledge, gained within the foreign parent’s headquarters, will be instrumental to the U.S. company’s expansion efforts.

The Petitioner has established that the Beneficiary possesses specialized knowledge, and that he has been and will be employed in positions requiring specialized knowledge.

ORDER: The appeal is sustained.

I anticipate that USCIS’s efforts to halt or only grudgingly approve legitimate merit-based immigration will continue to discourage outside investment and immigration into our manufacturing sector. Such short-sighted policies are at odds with our history, as immigrants have been key contributors in this field.  It was Danish-born Bill Knudsen who architected America’s manufacturing transformation at the outset of World War 2 into the famed “Arsenal of Democracy”.  But even Knudsen had available a significant retail manufacturing sector to transform: many of our factories have since packed up and left for Asia because we are no longer only game in town.  Therefore, we can now ill-afford to set red-tape or brick walls in the face of companies, like my client, who want to invest in not only “Buying American” and “Hiring American”, but also “Making American”.

Both decisions were published on USCIS’s website:

https://www.uscis.gov/…/Decisions_Iss…/SEP112018_02D7101.pdf

https://www.uscis.gov/…/Decisions_Iss…/SEP112018_03D7101.pdf

Report: F-1 OPT Numbers Significantly Increased from 2004-2016

I was interviewed by the San Francisco Chronicle’s Trisha Thadani for her well-researched article regarding the F-1 OPT program and the latest results of the Pew Research Center’s 12-year period study into this program, released today, in which it found that “Federal training program sees 400% increase in foreign students graduating and working in STEM fields from 2008 to 2016“.

Though it looks as if we can expect a further hobbling of the F-1 OPT program, I believe that such an act would only damage our nation’s precarious international lead in Science, Technology, Engineering and Mathematics (STEM).  There is a very real and obvious workforce problem in our country, for which the OPT or the H-1B is a temporary salve: not the cause. Rather, the issue is that among the tens of thousands of things that America has stopped manufacturing en masse include American STEM Graduates. That is the single biggest reason why half of our Ph.D. candidates as well as a quarter of our STEM workforce are foreign born.

Ultimately, instead of scapegoating “Srinivas from Hyderabad” for daring to pay U.S. tuition fees, studying hard, and filling one of the 480,000 open computing jobs nationwide in OPT or H-1B status, we should be asking ourselves why “Suzy from Ohio” is majoring in Italian Art History or Anthropology or Philosophy instead of Computer Engineering. Anti-immigrationists must stop playing the victim, stop shifting the blame onto the voiceless, and start taking personal responsibility, the American Way: by enrolling themselves or their own children into Mathematics, Biochemistry, Engineering, or Information Technology programs.

 

 

Trump administration indicates that it will terminate Work Permits (EADs) for H-4 Spouses of H-1B Workers

You don’t have to be an Oracle to realize that these planned changes are among a rash of similar changes, all of which appear to target one particular group: Indian IT professionals. The ultimate aim appears to be to dissuade such professionals from immigrating to the U.S. by making the H-1B program more complicated, unpredictable, expensive, and ultimately untenable.

USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions

USCIS announced that it will again suspend premium processing for H-1B Cap Subject cases until Sept. 10, 2018 in an effort, it claims, to “reduce overall H-1B processing times“.  The update also warns that it will deny any H-1B Cap Subject petition that provide one combined check for the H-1B and Premium Processing fees (even accidentally).
USCIS’ decision is illogical because it is rejecting a significant and valuable revenue stream which it sorely needs for its operations to actually reduce overall processing times.  USCIS is almost entirely funded by filing fees such as the $1225.00 premium processing fee, to the extent that when the rest of the Federal Government shuts down, USCIS doesn’t.  And currently, USCIS’ need for said revenue is even more critical considering that its staff and officers have been called upon to do increasingly more work in the adjudication process with regards to the intensity of scrutiny and the number of cases, all the while remaining consistent with each of the recent Policy Memos that have upended existing guidance/definitions relied upon by everyone, even AOs.
Turning away premium processing fees won’t help USCIS address backlogs in any meaningful or permanent way.  But creating an efficient electronic filing system will.  One of the foundational (but rarely referenced) reasons for USCIS’ delays and backlogs though is the fact that it has flushed three (3) billion dollars of funding along with 10+ years down the drain in its failed attempt to go digital through its “Transformation Program” which promised to improve service, efficiency and security, but the development of which the U.S. Government Accountability Office identified as early as 2007 as, “unfocused, conducted in an ad hoc and decentralized manner, and, in certain instances, duplicative”  Last year, the GAO presented a summary on the issues with the program:
“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.”
It is ironic that though USCIS has failed to create a functioning computerized system despite losing $3,000,000,000.00 over 10+ years, it has had no problems issuing unprecedented levels of queries and denials on H-1B petitions for IT professionals on the basis that their jobs aren’t “Specialty Occupations”.

USCIS’ Latest H-1B Policy Changes Continue to Target IT Consulting Firms that Hire H-1B Workers

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.

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.”

Ashwin Sharma interviewed by WJXT Channel 4 News about the Diversity Lottery Green Card program through which the alleged NYC Terrorist entered the USA

It appears that the NYC terror suspect Sayfullo Saipov entered the US because he was randomly selected to receive a US Green Card through the Diversity Lottery, a program that, in summary, grants 50,000 visas to those from “low admission” countries. The only other eligibility factors are that one must have a high school education or 2 years of work experience.

A cruel irony is that this suspect’s “truck-driving” experience could have been what qualified him to enter the U.S. with a green card. Another is that he very likely received a green card in a matter of months while our recent Math teacher client, who has taught for 10 years in H-1B status at a public school, must wait another 11-13 years for her green card.

Immigration doesn’t have to be a zero-sum game. We don’t have to eliminate the Diversity Lottery. But can’t we increase our vetting process and require DV lottery applicants to possess a Bachelors or Masters degree or even some skill that actually benefits the U.S.?

See also: https://www.news4jax.com/news/politics/what-is-the-diversity-visa-lottery_

The Proposed “RAISE Act” would Giveth little but Taketh a lot.

The Washington Post’s David Nakamura provides details on Sens. Tom Cotton (Ark.) and David Perdue (Ga.)’s new bill entitled “Reforming American Immigration for Strong Employment [RAISE] Act”.

In a nutshell, the new bill: a) Focuses on “Merit Based” Green Cards through a Canadian style points system b) Does away with the 50K Diversity Lottery green cards, c) Caps Refugee cases to 50K a year, d) Limits or does away with Family Based Immigration for “Extended Relatives” including adult children and siblings of US Citizens (termed “Chain Migration”), and d) Reduces the total number of Green Card issued annually by about half.

AIC’s New Fact Sheet Indicates that 20-25% of all STEM Workers are Foreign Born

The American Immigration Council just released a fact sheet entitled “Foreign-born STEM Workers in the United States” and noted the importance of said workers to America,

“STEM workers are essential to the U.S. economy in terms of productivity and innovation. As of 2015, the foreign-born comprised one-fifth to one-quarter of the STEM workforce, depending on what occupations are included within the definition of STEM. Notably, the total number of foreign-born STEM workers in the U.S. workforce has increased dramatically since 1990, both in absolute numbers and as a share of the total workforce. This is true at the national and state levels. Additionally, foreign-born workers make up an increasing share of STEM workers in all occupational categories.”

To view the fact sheet in its entirety, see:

It’s That Time of Year: the H-1B Fiscal Year Quota and the H-1B Haters

The Fiscal Year Quota for H-1B visas is, as usual, just opened on April 1 which elicits a bit more public interest about the H-1B program in particular and Business Immigration in general.  Unfortunately, Business Immigration is the orphaned step-brother of Family Based Immigration and the H-1B is not as publicly controversial a subject as most other immigration issues in the news though, so this public interest is invariably fleeting.

This is also about the time of year when anti-H-1B propagandists crawl out into the sunlight like xenophobic groundhogs to regurgitate their timeworn arguments against the visa program. They allege that the H-1B program as a whole fails to deliver the “best and the brightest” to America, that Americans are being displaced by foreigners earning “low wages“, that there are sufficient numbers of qualified American workers to fill the proffered jobs. Some of the slicker ones even feign an interest in the welfare of H-1B workers by claiming widespread abuse by H-1B employers (despite the fact that H-1B workers may transfer to another employer in 8 days whenever they’d like, and that they are protected by the DOL W&H and other agencies to a degree that would make a U.S. Citizen green with envy).

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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:
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