A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, August 3, 2018

What Exactly is H-1B Specialty Occupation?

USCIS is taking a tightened position regarding the meaning of H-1B "specialty occupation" pursuant to President Trump's Buy American Hire American executive order.  Many previously acceptable positions are being challenged now.  Computer programmer, systems analyst, and even software engineer position applications are being served with RFEs questioning whether the sponsored position is a specialty occupation. 

H-1B visas were created to bolster domestic tech industries by giving skilled foreigners up to 6 years of nonimmigrant status to work in the U.S. Successfully applying for the H-1B visa means meeting the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a            minimum for entry into the occupation in the United States.

Federal regulation 8 C.P.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation:

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;
2)  The degree requirement is common to the industry in parallel positions among similar
organizations or, in the alternative, an employer may show that its particular position is
so complex or unique that it can be performed only by an individual with a degree; 
3) The employer normally requires a degree or its equivalent for the position; or
4) The nature of the specific duties is so specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

Proving a position is specialty occupation to USCIS can be difficult. USCIS has interpreted the term "degree" requirement to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).  Hence, a generally relevant baccalaureate or higher degree is not enough. This reasoning creates a lot of uncertainties for employers when proving specialty occupation.  For example, for many years, a requirement of an engineering degree was acceptable proof of specialty occupation. But recently, some USCIS officers argue that an engineering degree may be too broad a requirement, as it includes many different specific specialties in science. 

Furthermore, the Administrative Appeals Office (AAO) has established that listing degree requirements from different major fields would disqualify a position from being a specialty occupation unless the employer can prove that each field is directly related to the duties and responsibilities of the particular position. Hence, degrees in chemistry or biochemistry with common core coursework have been found to be directly related to a related position's job duties. However, degree requirements in physics or philosophy would most likely be rejected.  

Specialty occupation visa applications are also subject to discretion from USCIS officers. Officers sometimes interpret 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean that a specific degree is absolutely necessary, ignoring words such as "normally" and "usually". They rely heavily on the Department of Labor's Occupational Outlook Handbook (OOH) when adjudicating H-1B cases. If the OOH does not 100% endorse a position's requirement for a particular degree, neither will USCIS officers. Such examples include computer programmer and system analysts positions. 

The OOH was created to provide general and statistical information about major occupations in the U.S.; it is never meant to serve as absolute legal standards for visa applications.The other issue with OOH is that it does not contain information on some occupations such as system engineers and statistical programmers. The handbook is also not the only legitimate source of occupational information and may not have the most up-to-date information. Nevertheless, it sets a standard for degree requirements and job duties that officers base their decisions on.

USCIS also examines the ultimate employment of the beneficiary to determine whether the position qualifies as a specialty occupation. When determining whether a position is a specialty occupation, USCIS also looks at the nature of the business offering the position and the description of the specific duties of the position as it relates to the particular employment. This includes consulting positions at third party client sites. Officers make a judgement on the job duties as a specialty occupation, regardless of what the employer states the job title is or the degree requirements are. 

When responding to Requests for Evidence, employers should make both legal arguments based on the statute and regulations and factual arguments based on the particulars of the H-1B position being offered.   For example, the regulation only requires that the position "normally" requires a degree and that the employer "normally" requires prospective workers to have a degree for the position. It does not impose an absolute requirement.  Further, if the OOH does not read that a position absolutely requires a degree, this does not mean the statute's definition is not met. Finally, it should be noted that only one of the four regulatory requirements needs to be met. 

Factually, employers can present evidence that it has always hired employees with specific requirements for a position in the past to prove that it is a specialty occupation.  Employers may also present evidence that other employers also have similar requirements in parallel positions.  Finally, arguing that the nature of the position or the specific duties of the position are so complex that a specialized degree is required is another factual argument to make.

The AAO has stated that a combination of a general bachelor's degree and experience for job duties and responsibilities can qualify a position as a specialty occupation.  This highlights the importance of the job qualifications, duties, and nature of the petitioning entity's business operations. Rather than viewing a job as a theoretical occupation in a vacuum, adjudicators must also consider these particular factors.


Thursday, July 26, 2018

Don't Overlook That I-9 Form: It Could Cost Employers Dearly!


Employers and those looking to hire must be extremely thorough when verifying employee documents and properly filling out Employment Eligibility Verification Form I-9.  Civil fines ranging from hundreds to thousands of dollars can be imposed on employers who fail to follow the rules by, for example, checking the wrong box in the form. Repeated violations, especially with multiple employees, can accumulate into a large sum. An employer can even go to jail for knowingly employing undocumented workers.

This year, the Homeland Security Investigations (HSI) branch of Immigration and Customs Enforcement (ICE) has beefed up its efforts to crack down on employers. The HSI conducted Form I-9 audits nationwide, serving 5,278 total Notices of Inspection (NOI) and making 93 arrests. Given this stricter environment, employers should ensure they are properly complying with I-9 guidelines.

Form I-9 audits begin with HSI serving an employer a NOI, informing them of the investigation and giving them 3 business days to produce company I-9 forms. Any violation in the documents or employer eligibility can result in civil fines. Simple clerical mistakes could trigger large sums of fines.

The civil fine for the first offense is $220 per single violation and increases substantially to $1,096 on the second offense. The third offense onward will fine the employer a hefty $2,191. These costs multiplied by several employees can equal tens or even hundreds of thousands of dollars. For example, Hartmann Studios, an event design and production company, was fined $600,000 in 2015 for basically failing to sign Section 2 of the employee I-9 forms. 

The more serious fines HSI can impose on employers are when an employer knowingly and/or repeatedly hires ineligible employees. A first offense fines the employer $548 per violation.  The third offense and onward fines can be up to $19,242.  The employer can even be subject to criminal arrest for these serious "knowingly hire" violations. 

Further, some businesses such as restaurants provide housing or shelters to employees as an accommodation.  However, providing housing or shelter could be viewed as illegally harboring illegal immigrants if the employees have no legal immigration status.

Employers and workers should expect a continuation of this heightened enforcement. Employers especially should take care to have employment documentation in order. Sloppily filled out I-9 forms can end up costing thousands in fines.

Friday, July 20, 2018

USCIS Officers Have Authority to Deny Petitions without RFEs or NOIDs

A recent memo dated July 13th, 2018 has granted immigration officers "full discretion" to deny an application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). It goes into effect on September 11, 2018. Any applications, petitions, or requests filed afterwards are subject to the procedures described in the memo.

RFEs are issued when a USCIS officer needs more information to properly adjudicate an application with insufficient evidence. NOIDs are sent out when an application has little or no evidence or when derogatory information unknown to the applicant is discovered. The previous policy memo issued in 2013 directed officers to issue an RFE or a NOID unless there is "no possibility" that any further possible evidence would get rid of the deficiency. Unless it was legally impossible to process the request, a RFE was to be issued in cases of insufficient evidence.

This recent memo rescinds this "no possibility" rule, instead giving adjudicators full discretion to deny cases without first issuing an RFE or a NOID. Furthermore, officers may deny an application based on lack of sufficient initial evidence, according to the memo. Not only are officers no longer obligated to issue RFEs in the case of insufficient evidence, they can outright deny the case. 

The memo cites two situations where a denial can be issued without a RFE or NOID based on lack of sufficient initial evidence. The first is when waiver requests have very little or no evidence. The second is in cases when a required official document is not given during initial filing. One such document is the Affidavit of Support, which is needed for family-based permanent residence cases. In this case, an officer is not obligated to send out a RFE for the Affidavit of Support and can deny the case.

Regarding NOIDs, the memo advises officers to continue allowing parties to respond to derogatory information as per regulation.

While the memo gives officers "full discretion", it does not force them to deny every case with the smallest deficiency. Officers will continue to issue statutory denials for requests without any legal basis. An example of this is a citizen petitioning for a family member when the beneficiary is not eligible to be sponsored (e.g., a cousin). In general, it
is difficult to ascertain how officers will use this new authority going forward in adjudicating applications. Still, anyone applying or petitioning for immigration benefits must ensure there are no evidentiary gaps in their submissions. An officer can legally deny the case immediately for any deficiency. 

Saturday, July 14, 2018

August 2018 Visa Bulletin: EB-1 Retrogression

















In the August 2018 Visa Bulletin, all EB-1 categories have cut-off dates of 05/01/2016 except China and India which are cutoff at 01/01/2012.  This has never happened before. 

EB-2 and EB-3 China advance 3 months and 18 months respectively.  EB-2 and EB-3 India both advance 2 months.  EB-2 and EB-3 Philippines both advance 5 months.

For the first time, Vietnam has cutoff dates for EB-1 and EB-5.

Family immigration categories have moderate advancements.

AD: Dates for Final Action (Approval)   FD : Dates for Filing Applications Only
      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
05/08/2011
05/08/2011
05/08/2011
08/01/1997
08/01/2006
FD
03/08/2012
03/08/2012
03/08/2012
09/01/1998
02/15/2008
F2A
AD
07/22/2016
07/22/2016
07/22/2016
07/01/2016
07/22/2016
FD
12/01/2017
12/01/2017
12/01/2017
12/01/2017
12/01/2017
F2B
AD
10/22/2011
10/22/2011
10/22/2011
04/01/1997
02/15/2007
FD
01/08/2012
01/08/2012
01/08/2012
06/08/1997
12/15/2007
F3
AD
06/15/2006
06/15/2006
06/15/2006
12/01/1995
05/01/1995
FD
09/22/2006
09/22/2006
09/22/2006
10/08/1998
08/01/1995
F4
AD
12/22/2004
12/22/2004
03/22/2004
01/15/1998
04/22/1995
FD
05/01/2005
05/01/2005
01/01/2005
06/01/1998
12/01/1995

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)



Employement
Other Countries
China
El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1

AD

05/01/2016
      01/01/2012

05/01/2016
          01/01/2012

05/01/2016

05/01/2016
FD
C
C
C
C
C
C
EB2
AD
 C
03/01/2015
C
  03/15/2009
C
C
FD
C
04/01/2015
C
05/22/2009
C
C
EB3
AD
C
07/01/2014
C
01/01/2009
C
06/01/2017
FD
C
01/01/2016
C
05/01/2009
C
07/01/2017
Other Workers
AD
C
05/01/2007
        C
01/01/2009
C
06/01/2017
FD
C
06/01/2008
C
05/01/2009
C
07/01/2017
EB4
AD
C
C
02/08/2016
02/08/2016
02/08/2016
C
FD
C
C
05/01/2016
C
C
C
EB5
AD
C
08/01/2014
C
C
C
C
FD
C
10/01/2014
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others) 
5th: Employment Creation (Investors)

Think Twice Before You File Any Immigration or Naturalization Application

The U.S. Citizenship and Immigration Services (USCIS) issued a recent policy guidance that indicates an expanded scope of power in issuing Notices to Appear (NTA). A Notice to Appear is a document that begins removal proceedings for a foreign national. It directs them to appear in immigration court in front of a judge and can end in deportation.

USCIS already has the authority under a previous guidance to issue NTAs in cases of national security concerns, cases where they are required to do so by statute or regulation, and in Temporary Protected Status and DACA cases. The recent policy update specifies that USCIS can issue an NTA on denied cases "for reasons other than fraud". This is a very broad definition, giving much leeway for USCIS to legally serve NTAs. There is a notable change in the scope of USCIS' authority between this new guidance and the previous one.

Furthermore, under the new guidance, after USCIS denies an immigration application, the applicant could be placed in removal proceedings if the person is unlawfully present in the U.S.  Currently, USCIS would issue a notice instructing an out-of-status applicant to leave the country after denial. 

Change of employers under H-1B status, for example, can become risky if the applicant leaves the initial employer before the petition to change employers is decided. A denial would result in the applicant becoming out of status.   Another example is a B1/B2 visitor applying for extension or change of status.  The current lengthy processing times mean that the applicant's authorized stay will almost certainly have ended when a decision is issued.  If her application is then denied, she is unlawfully in the country. The recent policy guidance gives the USCIS the authority to immediately issue an NTA in these circumstances. 

USCIS is also now able to serve NTAs to applicants charged or convicted of criminal offenses, regardless of whether the crime was related to the case. The policy guidance also writes that denial of N-400 applications on good moral character grounds because of criminal offenses can also result in an NTA. There is no specification on how old the charges or convictions need to be.

With these changes, the USCIS has become a powerful enforcer. The authority to serve NTAs under such broad definitions is substantial. It is not clear to what extent USCIS will exercise this new authority, especially given the huge backlog of removal cases already pending before the immigration court. Nonimmigrants must now plan very carefully when it comes to changing their immigration status. They should weigh the pros and cons before filing any petition with USCIS, as a denial could result in being placed in removal proceedings. An order of removal would make it very difficult for a foreigner to return to the U.S. in the future. 

Saturday, July 7, 2018

Sessions Rescinds Asylum-Seekers Ability to Work

America has always opened its door to people who escape persecution from other countries.  The Statute of Liberty still stands tall in the New York Harbor and, at its base, is still ingrained with Emma Lazarus's words "Give me your tired, your poor/Your huddled masses yearning to breathe free." While these words are set in stone, our immigration policy is rather fluid and changes constantly based on our current politics, economics, and "general feelings" about foreigners.  Our present policy is clearly one of restriction, as demonstrated by the newest announcement by the Attorney General that asylum seekers' ability to work will be taken away.

Many refugees came to America because of political and religious persecution, while some others foreigners may come here for economic opportunities.  Regardless of their true intentions, when foreigners arrive at our shore and seek asylum, we always give them an opportunity to state their case. We would offer protection if they meet the legal standards. Otherwise we reject their applications. While they are waiting to have their cases heard, our policy has been to allow them to stay and work here temporarily. 

Recently, many Obama-era immigration guidances have been dropped through the authority of Attorney General Jeff Sessions. One of the notable scrapped guidances was issued in 2011 which allowed asylum-seekers to work indefinitely and have a social security number. The same guidance restricted employers from requesting specific ID and immigration documents as proof of employment eligibility. Another dropped guidance, from 2009, mandated that employers not discriminate by immigration status when hiring. These changes allow employers to make hiring decisions based on applicants' immigration status and documents. 

There is a historical context behind this issue. In the past few decades, applying for asylum was basically the only way for the undocumented foreigners to obtain employment authorization. Many of them were lured, sometimes unknowingly, to submit asylum applications so that they may obtain EADs. Abuse of the asylum system has compromised its integrity and buried legitimate cases. The number of people that applied for asylum peaked in 2016 at around 180,000.

On a similar note, the backlog of cases in immigration courts has grown immensely in the past decade. As of May 2018 it has peaked to over 700,000 cases and eliminating this backlog is among Sessions' top priorities. He is aiming to do this by diminishing the employment incentive for illegitimate applicants. There is now a 180-day waiting period between applying for asylum and getting an EAD, but rescinding of the 2011 guidance will remove the benefit altogether. 

With these changes, the benefits of asylum-seekers are severely limited. Losing the ability to work and equal employment opportunities in the U.S. would certainly discourage economic refugees from coming here, but it would also make it very difficult for legitimate asylum seekers to survive while waiting for their claims to be reviewed.