Rules to Change the H-1B CAP Selection Process and Prevailing Wages

Right before the 2020 Presidential Election, the Trump Administration published a proposed rule on 11/02/2020 to revamp the current H-1B CAP selection process.  The central idea of the rule is to change the H-1B visa selection process based on the actual salaries offered by the employers.   

Under the current system, petitioners submit a registration for beneficiaries electronically during a designated period. If the number of registrations received exceed the applicable numerical allocation, USCIS will run a lottery to randomly select registrations for further processing.  Selected registrants will be notified to submit H-1B cap-subject petitions during a required filing period. 

Under the rule published by the Department of Homeland Security (DHS), USICS would have to rank and select registrations based on the proffered salary offered to H-1B beneficiaries for the CAP applications. Whenever the annual cap is reached, USCIS would start picking registrations that are filed by petitioners who are offering the highest salaries with their positions. The selection process will continue in descending order to registrations that have been filed for beneficiaries with lower salaries.

Currently, there are 4 wage levels, set by the Department of Labor, for H-1B applications as well as employment-based green card applications. These "prevailing wage" levels will be used as a standard of the ranking.  By law, employers must offer a salary that is higher than the prevailing wage for a particular level of employment.  

Prevailing wages are the wage requirements set by the DOL based on their salary surveys in each employment location. A new rule published on 10/8/2020 by DOL substantially increased the wage requirements, and it took effect almost instantly upon publication. This is another way for the Trump Administration to increase the wage requirements for employers to hire foreign workers.  

Working together, the new rules on H-1B selection and the wage requirements will set the bar very high for H-1B applications.  In fact, these new rules work as a de facto bar for certain employers including small and medium-sized businesses as well as non-exempt universities to hire foreign workers, as it would be very difficult for them to compete with the likes of Google and Microsoft when it comes to offers of salaries.  

Lawsuits have already been filed by employers and other parties to stop the enforcement of these rules.  Given the manner and speed that these rules were pushed out, the courts are very likely to agree with the employers.  Further, the new Biden Administration may also choose not to defend these Trump regulations or to cancel them directly.  Hence, the actual impact of these new rules may be short-lived. Still, employers must plan carefully during the interim to minimize the impact of these remnants of the Trump Administration. 

 (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Labor Cert Decisions on Rejections of Job Applicants and Minimum Requirements, etc.

Some recent decisions by the labor certification appeals board (BALCA) address various legal issues ranging from wage and signature discrepancies, screening and rejection of job applicants, and actual minimum requirements.   They are summarized below:

Labor certification denied when actual wage is higher than the wage posted:  The Board held that posting a wage lower than the actual wage mischaracterized the position such that the job was not clearly open to US workers. Here, the employer posted the wage as $8.00 per hour but, in fact, workers get $8.00 an hour for the first two months and then $8.25 for the remaining ten months of the year.   (Matter of Norman W. Fries, Inc., 10/28/16)

Labor Application and Recruitment Report had Different Signatories:   Different employer representatives can sign the labor application ETA Form 9089 and the recruiting report, according to the Board. This is not a reason for denial. (Matter of HTC Global Services, Inc., 10/28/16)

Employer May Reject Applicants Without An Interview:  Although an employer normally should interview all applicants that facially appear to have met the minimum job requirements.  When a job applicant clearly does not the skills or experience to perform certain complex duties of a job, the employer does not have a duty to interview the job applicant.  Here the job applicant does not have experience in "Term and UL GAAP, or in statutory or tax accounting, or in making presentations to senior level actuaries and business professionals."  The Board held that  expertise in these areas cannot be acquired by reasonable on-the-job training. (Matter of Genworth North America Corporation, 10/28/16) 

Employer's Rejection of Job Applicants Improper Without Support:   On the other hand, where an employer rejected 60 job applicants based solely on a review of the resume, BALCA finds that the employer did not meet its burden of proving that some of the applicants did not meet the minimum requirements or qualify for further consideration.  The employer in this case failed to articulate the reasons why four applicants did not meet the minimum requirements of the position. (Matter of HSBC Bank USA, N.A., 10/28/16)

Actual Minimum Requirements of Bachelor's Degree and 24-Month Experience Can be Substituted:  An Employer may accept any equally suitable combination of training and experience in lieu of a Bachelor’s degree and 24 months of experience, according to BALCA.    Here, the Employer demonstrated, through a credentials evaluation that the foreign worker met its alternative requirement of training and experience equivalent to a bachelor‟s degree in mechanical engineering and 24 months experience. The denial of labor certification was reversed.  (Matter of Intent Design, Ltd, 10/28/16)  

BALCA Emphasizes Substance Over Form In Recent Decisions

BALCA has shifted emphasis to substance over form in several recent labor application decisions.

In one case, the Certifying Officer denied labor application because the employer name in the ETA 9089 labor application was different from the one in the State Job Order.   BALCA reversed the denial and granted certification, holding that a minor typo error in the employer name on the State Job Order did not cause confusion to potential applications regarding the identity of the employer or otherwise undermine the employer's attestation.  Matter of SWDWII LLC, 2012-PER-00887 (Jan. 29, 2016).

In another decision, Matter of: UBS Securities LLC, 2012-PER-00845 (Jan. 8, 2016), BALCA reversed the denial of a labor application which had an alternative requirement of a master's degree and 36 years of experience.  The 36-year requirement was used as the basis for denial by the CO.  On appeal, the employer argued that the denial was not fair to the extent that the instruction of the form conflicts the question in the form regarding alternative requirements.   While the question in the form asks for the "number of years of [alternative work] experience," the instructions for the question asks employer to enter the "number of months" of experience.  Such a contradiction makes it impossible for the employer to answer the question correctly.  Hence, the Board found that enforcing the regulation to deny is "fundamentally unfair" under these circumstances. The decision is consistent with the Board's prior decision in HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc), where the Board held that denying an application for a mere typographical error violates fundamental fairness.

Finally in a third decision, the Board granted certification in a case where the State Job Order contains a different job description than the one listed in the labor application. This decision was based more on technical grounds.  The board held that the regulation governing general advertisements do not apply to State Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

PERM Labor Certification Processing Time

U.S. Labor Department posted the following PERM processing times as of 01/14/2014 -

Analyst Reviews: May 2013
Audit Review: October 2012

Reconsideration Requests: January 2014

Gov't Error Reconsiderations: Current

Labor application ads must include home office option

Modern jobs often allow employees to work from home or telecommute for various reasons.  Sometimes it is to accommodate an employee’s family needs. Other times, it is to ensure that employees stay close to customers for better services and response time.  For example, a sales professional may work from home and travel to various client sites within a region.  Technological gadgets such as smartphones and computers make telecommuting and offsite employment possible.  However, in the context of labor application, employers must include any telecommuting or home office option in the advertisements, according to a recent BALCA decision, Matter of Siemens Water Technologies Corp., 2011-PER-00955 (07/23/2013). 

A PERM foreign labor certification is required in most situations before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  One of the requirements is that ads must not “contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” 20 CFR § 656.17(f)(7). 

In Matter of Siemens, the employer filed a labor application on behalf of a foreign national for the position of a Field Service Engineer(FSE).  The employer’s company headquarter is located in Houston, TX. However, the FSE lives in Woodlands, TX, and is allowed to work from home.  Further, he must also travel to various client sites both in the U.S. as well as in other countries.  During the labor application process, the employer therefore recruited for the position in Woodlands, including placing ads in various media.  The ads listed Houston as the work location but did not include the home office arrangement as an option.  Consequently the CO denied the application.

The employer appealed to BALCA and argued that the regulation does not require the disclosure that the work location is a home office.  Further, the employer argued that the ads did not contain any terms or conditions that are less favorable than those offered to the foreign worker.  Finally, the employer also relied on the minutes of one of the DOL Stakeholder Liaison Meetings, which specifically allowed recruiting in the area of actual employment.

However, BALCA upheld the denial of labor application, explaining that the minutes cited by the employer only supports recruiting in the area of actual employment, i.e., Woodlands, TX, but do not provide guidance regarding what geographic location should be included in the ads.  According to BALCA, listing of the job location as Houston, TX, in the ads is actually a condition less favorable than those offered to the foreign worker.  The reason is that a potential job seeker could think that he or she is restricted to working in Houston.  Since the home office option is omitted in the ads, the ads failed to inform potential job seekers that they could also work from home and other areas.   

Under Siemens, employers must include any home office option in labor application ads. In fact, since the omission of employment conditions has been interpreted on multiple occasions by BALCA as being “unfavorable” or “restrictive” to the U.S. workers, it is wise to include all employment conditions - especially those relating to travel and work location - in the ads.  These conditions may include home office, telecommuting, travel or relocation to client clients, etc.

PERM Ads and Notice of Filing do not have to include language requirement

To meet the regulatory requirements of a permanent foreign labor application (PERM application), an employer does not need to include the language requirement of the job in the pre-filing advertisements and the Notice of Filing, according to a recent decision of the Board of Alien Labor Certification Appeals (BALCA). Matter of Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013).  The Board held that employers only need to include enough details in the ads to apprise U.S. workers of the job opportunity.

Before hiring a foreign national to fill a permanent job opening, a U.S. employer must first test the job market through the labor certification process. To test the job market, the employer must conduct a series of pre-filing recruiting activities including placing advertisements in newspapers and posting a notice at the place of employment. The labor application will only be certified if there is no qualified U.S. worker who is able, ready and willing to take the job.

How much information should be included in the advertisements and Notice of Filing has been a subject of much controversy. The regulation requires that the advertisements must “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 8 CFR § 656.17(f)(3). But it is unclear how much details are required to sufficiently apprise U.S. workers of the job opportunity.

In Matter of Architectural Stone Accents, the employer filed a labor application to sponsor a foreign national in the United states for the permanent professional position of “Production Supervisor”. In the ETA 9089 labor application, the employer specified that the ability to speak Spanish is a job requirement for this position. However, the employer failed to include this language requirement in the Notice of Filing. Consequently, the Certifying Officer (CO) denied certification because the Notice of Filing posted by the employer is deficient pursuant to 20 C.F.R. § 656.17(f)(3). The employer asked for reconsideration, arguing that the regulation does not require that the language requirement be included. Further, omission of the language requirement should actually have encouraged more job applicants to apply. However, the CO declined to reverse the denial. The employer appealed to BALCA.

On appeal, BALCA considered the issue of whether or not the language requirement must be included in the Notice of Filing (and also PERM Ads).  Initially the Board found that the NOF serves two purposes - to recruit U.S. workers, and also to provide a method for others employees and interested persons to provide information to the CO about an employer’s application. Although the requirements (relating to the contents) are similar for both the job advertisements and NOF, there are some slight differences between the two. For example, the rate of pay must be included in the NOF. 20 C.F.R. § 656.10(d).

The Board held Section 656.17(f)(3) does not require that all job requirements be listed on an advertisement. Specifically, the regulation only requires that an advertisement provide enough details “to apprise the U.S. workers of the job opportunity for which certification is sought.” In fact, in a FAQ provided by the Department of Labor’s Employment and Training Administration, it states that “[t]he regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity.”

Hence, BALCA concluded that PERM advertisements and NOF must only be specific enough to apprise the U.S. workers of the job opportunity.  Neither Section 656.10 nor Section 656.17(f) requires that the NOF list every job requirement. In the instant case, the Board examined the NOF and held that the omission of the Spanish language requirement does not violate the regulations, as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.”    Therefore, the Board reversed the CO’s decision and certified the employer’s labor application. 

In sum, PERM ads and Notice of Filing generally do not have to include the language requirement of the position.  However, it is conceivable that this general rule does not apply in certain situations.  For example, if an employer is hiring an interpreter or translator, it is expected that the specific language proficiency be included.  Otherwise, the job descriptions would not be specific enough to apprise potential U.S. job seekers of the job opportunity.  

LiveJournal Tags: PERM Ads,Labor Application,labor certification,BALCA,Employment based-immigration,employment visa

Ad Requiring a BA or MS Degree OK for Multiple-Opening Labor Certification

In a recent decision by BALCA, the Board held that the advertisement used by the employer for multiple openings was not confusing or misleading, and would not prevent qualified U.S. workers from applying.   “Requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field,” is the language used by the Employer in Matter of Microsoft Corp., 2011-PER-00789 (Apr. 12, 2013).  Such language is acceptable to support a labor certification filed for the position of a “support engineer” which required a Bachelor’s degree in Computer Science, Engineering, Physics, Math, Information Systems, Business or a related subject. 

Recent Decision on National Interest Waiver

Foreign professionals and researchers applying for employment-based permanent residence status may consider a request for a national interest waiver (NIW).  Normally, a foreign worker who wishes to apply for a green card through an offer of U.S. employment must obtain a certified Permanent Foreign Labor Application ("Labor Certification").  The Labor Certification is to show that the employer is not able to find a qualified U.S. worker who is able, willing and ready to do the job.  Applicants who apply for a national interest waiver are requesting that the Labor Certification requirement be waived because it is in the national interest of the United States.  

Unfortunately, the jobs that qualify for a national interest waiver are not defined by statute. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest. Applicants seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their green card application directly with USCIS.

The legal standard for adjudicating an NIW petition was clarified by an Administrative Appeals Office (AAO) decision, Matter of New York Dept. of Transportation in 1998.  In NYDOT, the Beneficiary possessed a master’s degree in civil engineering and was being petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. The AAO cited three factors that must be considered when evaluating a request for a national interest waiver. 

First, it must be shown that the foreigner seeks employment in an area of substantial intrinsic merit. Eligibility is not established solely by showing that the beneficiary's field of endeavor has intrinsic merit. In the NYDOT case, substantial intrinsic merit was found. The importance of proper maintenance of the state's bridges was sufficient to meet this first criteria.

Secondly, the petition must prove that the proposed benefit will be national in scope. In the NYDOT case, while the foreign engineer's employment in NYDOT was limited to the local area, New York's bridges and roads connected the state to the national transport system. Because the proper maintenance and operations of bridges and roads served the interests of other regions as well, the benefit was national in scope. 

Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification was required of the foreign worker. The engineer in NYDOT failed to meet this criteria because his contributions did not stand out among his peers, and therefore, his petition did not warrant a waiver of the Labor Certification.

A recent Administrative Appeal Office (AAO) decision from November 2011 provided some additional guidelines on the requirements of the NIW application.  An NIW petition filed by a post doc research scientist in the field of nanoscience and nanotechnology was denied by the USCIS Texas Service Center.  The AAO reversed the denial on appeal mostly because the TSC failed to give proper evidentiary weight to the scientist's influential published work in his field.  Although he only had four publications, they were published in the well-known Journal of the American Chemical Society and were cited more than 400 times by his peers. 

The AAO also noted that the legislature history suggested that the standard of adjudication for NIW applications should be applied as flexible as possible.  According to the AAO, it does not matter that the petitioner's articles were published when he was still a graduate student, which is an issue for EB-1B outstanding researcher petitions.  Finally, the AAO also noted that Congress's intention is to grant national interest waiver on the basis of the merits of the individual applicant rather than the importance of a particular field of work; the nonscientist met his legal burden of proof for a national interest waiver.

In sum, the requirements for a national interest waiver are stringent.  But for those who meet the basic requirements, a waiver can substantially speed up the green card application process.

(For the current legal standard of NIW petitions, follow this link.)