Attorney Sharma quoted again by the Times of India about the Presidential Proclamation Suspending Entry of Certain Immigrants (formerly known as the “Immigration Ban”)
“Ashwin Sharma, Florida based immigration attorney told TOI, “As per this proclamation, the categories most impacted would include green cards for parents and siblings of US citizens, and for spouses and children of green card holders.”
…
Sharma says, “The Presidents proclamation is illogical. It characterizes a 65-year-old parent of a US citizen as a greater threat to the American worker than the same US citizen’s 20-year-old son. The proclamation is also disingenuous in that in that it is attempting to rebrand the existing processing delays caused by Covid-19 as a targeted ‘suspension’ to shift public scrutiny away from the administration’s delays in addressing the pandemic, and onto its favourite scapegoat, immigrants.”
Relx, Inc. and Chatterjee v. Baran, 8/5/19 – DC District Court Judge Granted Summary Judgment to the Plaintiffs and Denied Government’s Motion to Dismiss in H-1B Denial
Recently, Judges at the U.S. District Court for the District of Columbia issued starkly contrasting decisions in two separate H-1B lawsuits. Both Sagarwala v. Cissna and RELX, Inc. d/b/a/ LexisNexis USA, and Subhasree Chatterjee v. Baran et al and arose from H-1B petitions that had been denied by the USCIS on “Specialty Occupation” grounds. Both also appear to have also been filed using the subcategories within the miscellaneous SOC Occupational Classification of 15-1199.00 – Computer Occupations, All Other — a somewhat troublesome classification to establish as a Specialty Occupation, primarily because the USCIS’s Undisputed Holy Book of Professional Occupations, the US Department of Labor’s Occupational Outlook Handbook (“OOH”), does not maintain a detailed description of this classification’s educational requirements.
Quartz India and Harvard Professor’s Insufficiently Researched Proposal on “Fixing the H-1B program”
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.
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
The U.S. Immigration Law Blog by Ashwin Sharma 
The Real Target of the $100,000 H-1B Fee May Be Harvard, Not Hyderabad
On Friday, the Trump administration issued an unprecedented proclamation announcing a new “supplemental entry fee” of $100,000 for foreign nationals seeking to enter the United States in H-1B status. The language was sweeping, and the initial read was that H-1B professionals and their families would face a six-figure hurdle tied to travel and reentry. Employers, immigration attorneys, and visa holders immediately scrambled to determine whether the rule applied retroactively, and if so, to whom. Panic followed. Those already abroad rushed to return to the U.S. before the policy took effect.
I was quoted by The Times of India in its article regarding the initial report. I stated that this proclamation was effectively, “Executive taxation without Congress approval”, and explained that, “Section 212(f) of the INA allows suspending entry, but it does not authorize a $100,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears entirely performative, calibrated to deliver a chilling effect on employers, and campuses.”
Then, late Saturday, came the administration’s clean-up. The Press Secretary tweeted that current H-1B holders and approved cases would not be charged and could travel and reenter as usual, and characterized the assessment as a one-time, petition-linked fee that would first show up in the next lottery cycle. More importantly, a USCIS memo and Department of State guidance followed, confirming that travel and renewals were unaffected and that the fee would apply prospectively only. USCIS’s memo put it plainly: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas.” This language eased the immediate chaos for cap-subject H-1B employees at for-profit employers with petitions already filed or approved. As of now, they appear to be untouched by the proclamation and may continue to travel abroad, apply for H-1B visas, and file H-1B extensions or change-of-employer petitions. (Though I wouldn’t recommend travelling abroad at this time).
But not everyone was spared. In The Times of India’s follow-up report after the weekend guidance, I focused on who remains exposed and the possible rationale: “The proclamation still looms, quietly aligned against cap-exempt institutions that cannot afford a six-figure payout or a political war. These institutions may soon find themselves in the crosshairs. Not because they are immigrants, but because they are liberals.”
This omission for cap-exempt employment in the administration’s guidance looks like design, not oversight. Even if already approved/filed cap-subject H-1B workers can keep traveling and renewing, next fiscal year’s H-1B cap-subject cases remain at issue and will likely require litigation to resolve. Again, it is also telling that there is still no carve-out for cap-exempt employers. Universities and research centers are currently still subject to the fee and bear the heaviest burden, for now. That supports the inference that the intended targets may not have necessarily been software developers from Hyderabad, but faculty and researchers at elite liberal universities such as Harvard, which notably refused to back down when threatened with federal funding cuts by this administration. Shifting cost and risk onto the cap-exempt H-1B workforce they employ is a direct and effective strike that would impact certain institutions harder than funding cuts.