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28 July 2017
It is common knowledge, even outside the immigration world, that the Trump administration is attempting to tighten immigration. One component that the administration has talked about is converting the employment-based immigration system utilising the H-1B visa to be more merit based rather than lottery based. Immigration practitioners have already seen a trend in this direction, with more requests for evidence (RFE) for lower-level professional categories, increased site visits and amplified scrutiny of foreign nationals' backgrounds from the US Customs and Border Patrol (CBP).
Senator Chuck Grassley (R-IA) has been a long-time critic of the H-1B visa programme, which allows companies to petition for foreign nationals with the equivalent of a US bachelor's degree to work in a 'specialty occupation',(1) meaning a position that requires a bachelor's degree or higher with specific and complex duties. In January 2017 Senators Grassley and Dick Durbin (D-IL) released legislation pertaining to the H-1B and L-1 visas to ensure that companies prioritise US workers and that the "best and brightest" receive preference in H-1B visa applications.(2) Consequently, Grassley and Durbin's bill would change the selection process from a random process to a merit-based system. Currently, visas are administered under a lottery process whereby 65,000 petitions and an additional 20,000 petitions for those with a US master's degree are selected at random out of the individuals that apply for the H-1B visa.(3) For the 2018 fiscal year, US Citizenship and Immigration Services (USCIS) received 199,000 H-1B petitions during the filing period.(4)
Grassley's bill also would provide the US Department of Labour (DOL) enhanced authority to review, investigate and audit employer compliance with programme requirements, as well as to penalise fraudulent or abusive conduct. It requires the production of extensive statistical data about the H-1B and L-1 programmes, including wage data, worker education levels, place of employment and gender.
In June 2017 Grassley requested additional information from DOL regarding the extent to which US companies employ H-1B workers through contracting companies and the impact that this may have on wages and US workers.(5) Grassley has praised actions taken by President Trump, Labour Secretary Acosta and the Department of Homeland Security (DHS) in combating visa fraud and protecting US workers. One such recent activity includes a memo issued by USCIS discussing lower-level occupations and positions.
On March 31 2017 USCIS released a policy memo entitled "Rescission of the December 22 2000 'Guidance memo on H-1B Computer Related Positions'".(6) In the memo, USCIS indicates that it takes issue with the occupation of computer programmer and, based on DOL's Bureau of Labour Statistics Occupational Outlook Handbook (OOH), concludes that most computer programmer positions would not qualify for the H-1B category because not all computer programmer positions require a bachelor's degree or higher. This would be an occupational classification for companies to avoid in the future as it may lead to additional scrutiny, including RFE or denials.
When filing for an H-1B position, the sponsoring company must complete a labour condition application and submit it to the DOL. On the application, the employer must select one of four wage levels for the occupation, based on a comparison between the employer's job requirements and the occupational requirements. Level 1 is used for most entry-level positions, while Level 4 is reserved for those most "fully competent" in the position. Level I wage rates are assigned to job offers for entry-level employees who have only a basic understanding of the occupation and perform tasks that require limited, if any, judgement and that provide experience and familiarisation with the employer's methods, practices and programmes.
The recent USCIS memo concludes that a Level 1 (entry-level) designation for a position covered under the computer programmer occupation classification would not qualify as a specialty occupation position. As a result, this combination (ie, Level 1 and the computer programmer Standard Occupational Classification code) would probably be one to avoid if trying to show that a position is a specialty occupation. This is consistent with Grassley's bill and messages to establish a more merit-based system, focusing on the best and the brightest over those that are more entry level (ie, those deserving only a Level 1 wage).
The memo indicates that officers should scrutinise the wage level on the labour condition application to make sure that wage levels correspond to job duties. As such, as a general practice, employers will probably want to avoid Level 1 when processing H-1B cases, and will likely see more written RFE if the Level 1 wage designation is selected.
The memo also affirms that the petitioning employer has the burden of proof to show that the position is a specialty occupation and inconclusive statements from the OOH are insufficient to show that the position is a specialty occupation. Further, the memo indicates that merely requiring a degree for the position without more evidence does not in and of itself support the notion that the position is a specialty occupation. Therefore, companies may need to rely on more expert opinions and closely follow regulation when showing that a position meets one of the criteria for designating the position as a specialty occupation.(7)
Immigration practitioners have already seen an increase in RFE surrounding wage levels and the computer programmer occupation.
Subsequent to the USCIS memo and announcements from various government agencies regarding increasing enforcement, immigration practitioners have started seeing RFE requesting additional information pertaining to Level 1 wages. Specifically, the RFE have summarised DOL's 'Level 1' definition and indicated that the petitioning employer's assertion that the position is a specialty occupation by virtue of the highly complex job duties conflicts with the Level 1 wage classification. The RFE continue to point out that based on information from the OOH, some employers require only a post-secondary certificate for the position selected(8) and therefore "a bachelor's degree in a specific specialty does not appear to be a minimum requirement". Employers are likely to see more scrutiny over petitions selecting Level 1 and especially those for which the OOH does not specifically require a minimum of a US bachelor's degree or its equivalent.
In addition to enhanced scrutiny over petitions, employers should expect to see additional penalties for abuse. In June 2017 Acosta announced actions to increase protections for US workers while more aggressively confronting entities committing visa programme fraud and abuse.(9) In this announcement, the secretary directed:
Acosta also indicated that the department will continue to work with the Department of Justice and DHS to further investigate and detect visa programme fraud and abuse.
Currently, wilful violations on a labour condition application could have civil monetary penalties as high as $51,588 and violators could face debarment.(10) It is incredibly important that employers ensure that the information on applications and petitions is accurate and that they are following all government policies.
For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.
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Melissa B Winkler