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.”
The U.S. Immigration Blog by Ashwin Sharma Has Been Nominated for The Expert Institute’s Best Legal Blog Contest
From a field of hundreds of potential nominees, The U.S. Immigration Blog by Ashwin Sharma (www.ashwinsharma.com) has received enough nominations to join the one of the largest competitions for legal blog writing online today.
Our readers can vote by navigating to our blog’s voting page at https://www.theexpertinstitute.com/legal-blog/the-u-s-immigration-law-blog-by-ashwin-sharma
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You can find more information about the contest, as well as the complete contest rules, on the blog contest home page.
The competition will run from November 5th until the close of voting at 12:00 AM on December 17th, at which point the votes will be tallied and the winners announced.
The competition can be found at https://www.theexpertinstitute.com/blog-contest/
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Attorney Ashwin Sharma Interviewed by BBC Radio (Hindi) on President Trump’s Proposed Plans to End Birthright Citizenship in the U.S.
Ashwin Sharma was interviewed by BBC Radio (Hindi) on President Trump’s recent announcement that he intends to end birthright citizenship in the USA through an Executive Order.
By way of background, President Trump had stated earlier this week that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” However this is incorrect, as at least three dozen other countries, including Canada and Mexico, follow the principles of “Jus Soli”, Latin for “right of the soil”, as a near unconditional basis for citizenship.
Birthright Citizenship in the United States is guaranteed by the 14th Amendment to the Constitution, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, an Executive Order alone, even one with a magical signature, cannot effect the changes to Birthright Citizenship as proposed by the President.
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.
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) Â§ 101(a)(15)(L), 8 U.S.C. Â§ 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. Â§ 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 theÂ 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:
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
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.
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_