2020 was a historic year for H-1B with the ITServe case, removal of the Neufeld and Contracts and Itineraries memos, and the Biden Administration change in philosophy and approach towards Immigration.
It resulted in a 97% approval rate for H-1Bs. Flowing into 2021 and with the bounce-back of the economy from the pandemic and a labor shortage, it is assumed it will continue to go in the same direction.
But processing H-1Bs is still complex, cases still get denied, and improper processing can result in allegations of fraud. This can result in criminal convictions, loss of corporate assets, and deportation for owners and employees. The Fraud Detection Unit and FDNS is well funded and has had an all-time high number of USCIS and DOL referrals lately. Now that adjudicators are not permitted to require third-party contacts, itineraries, letters, site visits, emails, and calls from investigators to owners and beneficiaries, third-party clients are becoming more prevalent.
The following issues will be important this year:
Employer-Employee Relationship: While proving though, third-party letters are no longer required. The petitioning company is still needed to be the actual employer. This issue is verified through meeting at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors.
Establishing this in client contractual language, offer letters, employment agreements, employment handbooks, and even on invoices consistently can address this. Another tip is using project management software or other communication to establish oversight of beneficiaries who clearly work off-site.
Multiple companies with same owners: Investigation, RFE’s and 212(g) consulate denials for H-1B employees of companies owned by a person who owns numerous companies have seen a recent uptick trend. These investigations may be seeking information that indicates the other companies were created to avoid higher filing fees for companies that are H-1B dependent. Many related companies are formed for legitimate reasons, including strategic processes, different skills, different business channels, etc. If you have multiple companies to avoid or address this issue, there are many things to consider.
Specialty Occupation: Probably the most analyzed issue. USCIS has changed some of its more restrictive thinking on this, like the bizarre distinction between programmers and developers. But it still uses the more restrictive Occupational Outlook Handbook instead of O*NET as its database for acceptable jobs and their requirement for specific educational degrees. The ITServe case removes their strategy of meeting multiple criteria under the specialty occupation regs instead of just one. Some strategy to meet additional criteria is OOH analysis, which is how USCIS determines criterion 1, is to show the company has a history of hiring with the same or similar degree by collecting degrees and employment proof of others and that it is a norm in the industry to hire with identical or similar positions by collecting want ads for similarly sized companies.
Educational Requirement: While ITServe received the most notoriety for changing-1B policy, other cases had a significant impact. Some that did so in the educational requirement InspectionXpert (IXC) holds that USCIS cannot require a degree in just one particular subspecialty for a job to qualify as an H-1B specialty occupation. The court, relying on the holding of the Supreme Court of the United States in Kisor v. Wilkie, found that USCIS’s interpretation of its H-1B regulation was unreasonable and not entitled to deference: “An engineering degree requirement meets the specialty occupation degree requirement.”
Further, the IXC court affirmed that the adjudicating officer’s unfavorable decision conflicted with USCIS’s own long-standing tradition of recognizing that, "A position can qualify as a specialty occupation even if it permits a degree in [a broad field encompassing] more than one academic discipline."
USCIS attempted to interpret the term “normally” to mean more than “70%." 70% of those working as QA Engineers have at least a bachelor’s degree (according to O*NET statistics) is insufficient To the extent USCIS construed “normally” to require something more than “most” or “70%,” it erred.
The IXC court held instead to look at the “ordinary meaning of the term. See also Normally, Oxford University Press. Defining as under normal or usual conditions, and in the usual way and identifying as synonyms, usually, ordinarily, commonly ordinarily, in general mostly most of the time more often than not. and regularly.” (IXC at 59 FN 25)
IXC relied on other Federal cases that provide instruction on the issue:
- Data analyst is a specialized occupation, although numerous degrees can lead to entry. Nowhere in the statute does it require the degree to come solely from one particular academic discipline. citing RELX Inc. v. Baran
- The first regulatory criterion does not restrict qualifying occupations to those for which there exists a single, specifically tailored, and titled degree program. citing Raj & Co. v. USCIS
- Notably, the INA defies professions-the basis for the H-1B regulation’s specialty occupation requirement-at the categorical level (e.g., “lawyers” and “teachers,” 8 USC §1101(a)(32), rather than “tax lawyer” or “college English professor, “(Id, at 58 citing Matter of Essex, and specifically includes “engineers.”
Next Generation Technology Inc. v. Johnson held, “Even affording appropriate deference to the Government’s interpretation of the statutory and regulatory requirements. This court is at a loss to see a ‘rational connection’ between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’s determination that “computer programmers are not normally required to have a bachelor’s degree.’”
On March 31, 2020, in two separate cases, Judge Rudolf Contreras of the United States District Court for the District of Columbia issued two decisions on H-1B adjudications for computer systems analysts. Taylor Made Software, Inc. v. Cuccinelli, and Info Labs Inc. v. USCIS.
In both cases, the agency determined that the Department of Labor’s authoritative source of information about occupations in the United States, the Occupational Outlook Handbook, stated that “most” United States workers doing this job have a degree in the specific specialty (computer science) and that it was “typical” for United States workers to have this degree when working in the field. Notwithstanding the Department of Labor’s position, the agency found it was not “normal” for United States workers doing the job to have a degree in the specific specialty. Judge Contreras found this reasoning to be arbitrary and capricious.
The United States District Court for the District of Columbia also entered an order invalidating Defendant’s interpretation of the degree requirement in 3Q Digital v. Nielsen, No. 1:19cv579 (DDC March 6, 2020).
The United States District Court for the District of Columbia also entered an order invalidating the Defendant’s practice of avoiding expert opinion and employer evidence letters regarding the position and degree requirement in Barchart v. Cissna, 1:19-cv-556.
Relying on these cases to analyze the education requirement is helpful to winning H-1B cases.
Wages: There is discussion at both the Congressional and Agency level that the desire to increase wages for H-1Bs is of interest to USCIS and may come into play in its adjudication this year. Issues to watch out for are using inaccurate job titles and descriptions to lower wages using
the lower prevailing wages for employees working at numerous locations simultaneously like from home, company location, or third-party site. Watch out for employees moving during the term of a job which may require filing an amendment and possible increase wage.
Consular Processing: Two interests of the Biden Administration may be favorable immigration policies and COVID-19 related health issues. These policies come in conflict in the realm of consular processing and are both fluid and inconsistent. The result is a lot of denials and delays. The 221(g) denial is the standard response. The National Interest Exemption has been a tool for countries that had travel bans until November 2021. The nation-based bans were eliminated, which resulted in a wave of people trying to get into consulates around the globe, impacting every industry.
There are techniques and methods that apply to consulates on a case-by-case, consulate-by-consulate basis. They constantly change and are not uniform. But in short, a strategy of approach, developing or adding evidence, and constant attention are the keys to finding success in a hard-to-find success situation.
Site Visits and Investigations: These can be random; but may not be, and you may not know. Your participation is voluntary, and what you say or write can and will be used against you. There is no one size fits all way to deal with it or any of the questions or situations that is part of the process. Dealing with them requires precision, and all communication, no matter how early or small, may make the difference in what happens. Hire an attorney and let them answer and speak for or with you. Never do any part of these on your own.