Next Generation Tech. v. Johnson curbs USCIS restrictive H-1B analysis
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Timely Federal Court case, Next Generation Technology v. Johnson curtails USCIS’s restrictive analysis of H-1Bs and other ways to address Level 1 RFEs

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A Federal Court decision on September 29, 2017, Next Generation Technology v. Johnson, affirms that the occupation of “computer programmer” is considered a specialty occupation for purposes of H-1B qualification (15 cv 5663, AILA Doc. No. 17100334, at 20 (S.D.N.Y. 09/29/2017) [hereinafter Next Generation v. Johnson].

In its decision, the District Court for the Southern District of New York held that where the Occupational Handbook states that most positions in a field require a bachelor degree, even if some do not, this “demonstrates that a bachelor’s degree or higher in a specific specialty is normally the minimum requirement for entry into the position” as is required to be considered a specialty occupation (Id. at 22. See also 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)).

This Federal Court’s precedential ruling overturned an AAO decision, stating the agency’s actions were deemed arbitrary and capricious under the Administrative Procedures Act because it “disregarded pertinent evidence” in declining to find the proffered position as a specialty occupation despite the language in the DOL’s Occupational Handbook.

The industry standard for computer programmer positions is to hire candidates with at least a bachelor degree as demonstrated by the DOL’s Occupational Outlook Handbook field, which reads “Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.”

This demonstrates that this occupation is a specialty occupation according to Blacher v. Ridge, No. 4 cv 8004 (LAP), 436 F. Supp. 2d 602, 609 (S.D.N.Y. 2006), which states that

“Reliance on the Occupational Handbook is reasonable in determining whether a proposed position satisfies the requirements of a ‘specialty occupation.’”

The Next Generation Court clearly states,

“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.’”

This case was remanded to the agency for further proceedings consistent with this Memorandum and Order.

The Next Generation v. Johnson case applies to Level 1 Wage issue RFEs because it curtails the source of this recently trending RFE issue–the USCIS Policy Memo of March 31, 2017 (PM-602-0142), which states,

“Based on the current version of the OOH Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii).”

That Memo states in footnote 6 that

“Officers are reminded that ‘USCIS must determine whether the attestations and content of [a Labor Condition Application (LCA)] correspond to and support the H-1B visa petition.’ See Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 (AAO 2015). Accordingly, USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”

The March 31 Policy Memo cites the Matter of Simeio to grant USCIS discretion to adjudicate Department of Labor wage level determinations in the Labor Condition Application, and as a tool to determine that jobs with lowest level of pay may not be specialized, and therefore are not eligible for the H-1B.

USCIS has issued a variety of Requests for Evidence that pose these new hurdles in different ways by either questioning the specialized nature of the position because of the entry-level job duties, or questioning whether the LCA correlates to the position because of the Level 1 wage.

This attempts to place the Petitioner in a Catch 22: if a position is certified by the DOL as a Level 1 wage then it may not be considered specialized, but if the job duties indicate it is a specialized occupation then the USCIS questions whether the Level 1 wage is appropriate.

The March 31 Policy Memo attempts to extend the Matter of Simeio, which only concerned whether changes in terms of employment required filing a new LCA and amended I-129 H-1B petition. Now, USCIS attempts to use the case again, citing it in a manner that is a stretch and inconsistent from it actual language. For example, Simeio footnote 6 reads,

“Upon receiving DOL’s certification, the prospective employer then submits the certified LCA to USCIS with an H−1B petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(1). DOL reviews LCAs “for completeness and obvious inaccuracies’ and will certify the LCA absent a determination that the application is incomplete or obviously inaccurate. Section 212(n)(1)(G)(ii) of the Act. In contrast, USCIS must determine whether the attestations and content of an LCA correspond to and support the H−1B visa petition, including the specific place of employment. 20 C.F.R. § 655.705(b) (2014); see also 8 C.F.R. § 214.2(h)(4)(i)(B).”

The Simeio language lays out the respective roles of the agencies: DOL determines the wage and USCIS verifies the proper location. While this language does not specifically limit USCIS in its analysis of the LCA it surely does not provide it the instruction or even imply that USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position, as the March 31 Policy Memo states.

The March 31 Policy Memo instructing the LCA analysis is outside the scope of the adjudicators duties and would be an ultra vires determination. It is the duty of DOL to determine wages, not USCIS. In the H-1B context, USCIS is charged with determining whether the position is a “specialty occupation” and whether the beneficiary is qualified to carry out the duties of the position. As confirmed in the DOL regulations, “DHS determines whether the petition is supported by an LCA which corresponds with the petition, [and] whether the occupation named in the Labor certification application is a specialty occupation…” See 20 CFR §705(b).

DOL has jurisdiction over the mathematical calculation employers use to accurately determine the wage rate for the H-1B petition. USCIS determines whether a certified LCA “corresponds” with the occupational classification and location listed on the LCA. As stated in Matter of S- Inc. (AAO Jan. 6, 2017), “a position’s wage level designation may be a consideration but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act.” (ID# 32072 at FN 10, AILA InfoNet No. 17080932. (AAO Jan. 6, 2017)).

Attorneys must therefore comply with two separate sets of laws, created for two different purposes. The Service’s re-adjudication of a determination made by and reserved to the DOL is therefore ultra vires, i.e., impermissibly beyond the agency’s vested authority and contrary to DOL’s determination.

The Next Generation Court’s reasoning that “Reliance on the Occupational Handbook is reasonable in determining whether a proposed position satisfies the requirements of a ‘specialty occupation’” negates the USCIS Policy Memo’s process for digging into the LCA analysis at all.

The Next Generation decision supports the fact that nothing in the statute or regulations states entry-level positions in specialty occupations change the character of the occupation itself. Where the occupation is a specialized one, such as computer programming, a “basic understanding” still requires familiarity with a substantial body of complex knowledge.

To analogize, an entry level M.D. with only a “basic understanding” of the occupation of a physician would still be entering a specialty occupation because of the knowledge that he/she gained in obtaining their degree and the inherent complexity of the subject-matter.

Any suggestion that a position cannot be deemed a “specialty occupation” if the assigned wage is a Level 1 wage assumes that specialty occupations must always require additional experience beyond the degree requirement and that the attainment of the degree is insufficient to instill the knowledge necessary to perform the duties of the occupation.

The Next Generation case is a Federal Court decision so it provides precedent and builds on Administrative Appeals Office (AAO) non -precedent decisions such as Matter of P-D-S-, ID# 283927 (AAO July 31, 2017), in which footnote 10 states:

[I]t is important to note that a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position would still require a minimum of a bachelor’s degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent. That is, a position’s wage level designation may be a consideration but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act.

Another AAO decision in Matter of I- LLC, ID# 17554 (AAO Aug. 3, 2016), echoes the same principle in FN 8, stating:

[A] Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level l, entry-level position would still require a minimum of a bachelor’s degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty, or its equivalent. That is, a position’s wage level designation may be a relevant factor but is not itself conclusive evidence that a proffered position meets the requirements of section 214(i)(I) of the Act.

Neither the statute nor the regulations require experience to demonstrate that a position is a specialty occupation. The issue is whether a degree in a specific specialty or the identified body of knowledge is required. Had Congress intended H-1Bs to be available only to individuals with more than “X” years of experience, or had it intended to limit H-1Bs to positions with higher wage levels, it would have specifically provided for that in the INA.

As stated by the Federal Judiciary and the AAO, certain occupations are considered specialty even for Level 1 wage entry-level positions—and computer programmer is one of those occupations. The wage level is only a means to determine the proper prevailing wage. It has nothing to do with a determination of whether the occupation is a specialty occupation.

While addressing RFEs it is not a good idea to just provide legal arguments that the adjudicator or USCIS is wrong. They are judge and jury of the case and appeals are lengthy, expensive, and impractical. Therefore, there are ways to answer the level one RFEs through analysis of the process the Department of Labor utilizes to determine LCA wage levels.

The DOL Prevailing Wage Determination Policy Guidance (“DOL Wage Guidance”) provides that,

“[a]ll prevailing wage determinations shall start with an entry level wage and progress to a wage that is commensurate with that of a qualified, experienced, or fully competent worker only after considering the experience, education and skill requirements of an employer’s job description (opportunity). [1]

In other words, the wage determination is primarily focused on the requirements (experience, education, and skills) for the position rather than the complexity of the duties. The Board of Alien Labor Certification Appeals (BALCA) in Matter of Reed Elsevier, Inc., 2008-PER-00201 at 4 (BALCA April 13, 2009), holds that the DOL Wage Guidance is the exclusive and binding authority upon which DOL may base prevailing wage determinations and that under the guidance, the factors to be considered in making a prevailing wage determination are limited to experience, education, special skills, and supervisory duties, which are to be considered separately and independently.

For example, suppose the Petitioner’s Support Letter describes the job requirements as follows:

  • Experience requirement: 0 (zero)
  • Education requirement: Bachelor degree or higher in industry recognized areas including computer science, engineering, mathematics, management information systems, or a related field.
  • Special skills requirement: 0 (zero) beyond those listed in O*NET

DOL Wage Guidance provides step-by-step procedures, worksheets, and resources to guide employers through the correct mathematical calculation to arrive at the appropriate wage level [2].

Pursuant to the hypothetical Petitioner’s above-stated requirements, DOL’s determination that the position was a Level 1 Wage is correct when examining DOL’s Appendix C Worksheet.

A statement could be made that the Beneficiary’s degree provides him the knowledge to perform the sophisticated duties required by the specialty occupation of a computer programmer, but his lack of experience is why supervision is required. Reminding USCIS that DOL’s application of the Wage Guidelines was correct in determining a Level 1 Wage for this position reaffirms that the officer is readjudicating the determination of another government agency.

You can demonstrate the is the proper application of the DOL Wage Guidance, resulting in a Level 1 wage for this position through a chart like this:

Indicator Job Offer Requirements O*NET-Usual Requirements Instruction Wage Level Result
Step 1. Requirements [3] 1
Step 2. Experience [4] Enter the years of experience required by the employer.’

[ZERO]

Job Zone (overall experience, job training)

[Job Zone 4,

SVP (7<8)]

If the years of experience in the job order are greater than the low end of the O*NET usual requirements, enter 1, 2, or 3.

[Enter zero—experience requirement is less]

 0
Step 3.

Education

Enter the education or training required by the employer.

[Bachelor degree]

Professional Occupations Appendix D.

Other occupations-Job Zone[5] (overall experience, job training, education)

[Job Zone indicates a bachelor degree]

 If the years of required education in the job order are greater than the Categories for Professional Occupations OR O*NET usual requirements for non-professional occupations, enter 1 or 2.[Education requirement is not more, enter zero]  0
Step 4.

Special Skills (Y/N)

Note special requirements from the job description or other special requirements including licensure or certification.

[Zero beyond those listed in O*NET]

O*NET Tasks, Knowledge and Work Activities.

National or state licensing/certification requirements.

Consider if skills, knowledge, work activities, tasks, licensure or certification requirements indicate a higher level of complexity or decision-making.  Enter 1 or 2 as appropriate.

[Job posting doesn’t require higher level of skills, enter zero]

 0
Step 5.

Supervisory Duties (Y/N)

 Note any supervisory duties indicated in the job duties or description.[No supervisory duties.  Rather, position will be supervised by superior(s)] If Yes, enter a 1—UNLESS supervision is generally required by the O*NET occupation.

[No supervisory duties, enter zero]

 0
 Sum (Wage Level) 1

After demonstrating the proper application of the DOL Wage Guidance, point out that using the DOL’s worksheet results in a Level 1 wage. Nothing in the statute or regulations suggests that entry-level positions in specialty occupations change the character of the occupation itself. Rather, the DOL Wage Guidance provides that for a Job Zone 4 occupation, a Level 1 wage applies to a graduate with 0 to 2 years of experience, which is highly indicative of an entry-level position.

One indicator that a job is not too sophisticated to rise to a level two is whether the job requires supervision. For example, at our firm we have senior attorneys with years of experience and associate attorneys with less experience. We both provide the same duties of legal strategy, research, and writing legal arguments. But the less experienced attorneys provide their services under the supervision of the more experienced attorneys. The same situation is common in all professions including computer programming. Petitioners must establish the extent of supervision through day to day documents like contracts, invoices, communications, performance evaluations and testimony in affidavits of support.

Prior to the March 31, 2017 USCIS Policy Memo, obtaining an H-1B required jobs to have duties over a bar indicating whether they were sophisticated enough to be specialized. Following the March 31 Memo, it became a window if the job was level 1, meaning the duties could not be too sophisticated or the USCIS would question whether the duties were inconsistent with the LCA. The Next Generation case breaks the window of USCIS restrictive analysis. The legacy of Next Generation will become more evident with determinations of the RFEs and the decision USCIS makes following the remand of the case for agency readjudication compliant with the Court’s decision.


Footnotes

[1] See Employment and Training Administration, Prevailing Wage Determination Policy Guidance (revised November 2009) at 14-16, available at http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf, published on AILA InfoNet at Doc. No. 10010468 [hereinafter DOL Wage Guidance].  See also 8 CFR §656.40 (providing relevant factors in determining a prevailing wage rate).
[2] DOL Wage Guidance.
[3] Calculations based on data corresponding to O*NET occupation 15-1131 (computer programmers), Job Zone 4.
[4] DOL Wage Guidance states “For Occupations Listed in Job Zones 2 through 5, if the employer’s experience requirement is at or below the level of experience and SVP range, make no entry in the Wage Level Column.” The Petitioner’s experience requirement of zero is below the listed SVP of (7<8), therefore zero is entered for this step.
[5] DOL Wage Guidance states “for all [non- Appendix D] occupations, use the education level for what ‘most of these occupations require’ or ‘these occupations usually require’ describe in the O*NET Job Zone for that occupation.” This occupation is not listed on Appendix D, so we resort to the Job Zone info, which reads “Most of these occupations require a four-year bachelor’s degree.” As such, the Petitioner’s requirements do not surpass the O*NET standards, and therefore zero points are added for this step.

About the Author Jon Velie

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., a revolutionary Immigration platform and global Immigration network. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at jon@onlinevisas.com or 405-310-4333 office or 405-821-5959 mobile.

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