H-1B Visas:

Trends, Troubles & The Look Ahead

Justin Storch

Manager of Agency Liaison at Council for Global Immigration

Council for Global Immigration

Washington, D.C.

H-1B Visas: Trends, Troubles & The Look Ahead | September 7, 2017 | 2

Webinar Moderator

Angelo A. PaparelliPartnerSeyfarth Shaw, LLPapaparelli@seyfarth.comLos Angeles, CA and New York, NY

Mareza I. EstevezLegal Advice | Global Compliance & Policy | Global Mobility & Employment | Government Relationsmareza.estevez@gmail.comNew York Metro Area

Webinar Panelists

H-1B Visas: Trends, Troubles & The Look Ahead | September 7, 2017 | 3

• S.180 - H-1B and L-1 Visa Reform Act of 2017, introduced on January 20, 2017

• USCIS policy memo: Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions,’

dated March 31, 2017

• USCIS policy announcement: Putting American Workers First: USCIS Announces Further Measures to Detect H-1B

Visa Fraud and Abuse, released on April 3, 2017

• Senate Judiciary Committee Chairman Chuck Grassley (R-IO), April 4, 2017:

“The H-1B worker visa program was created to fill gaps in the high-skilled American workforce, not to displace

American workers. Yet, stories of employers who abuse or exploit the H-1B program at the expense of

American workers are well documented. This announcement by the Trump Administration to target employers

who abuse the H-1B program is a welcomed first step toward preventing the firing of skilled American workers.

However, much more needs to be done. The President should continue using his authority to prevent

outsourcing companies from displacing American workers. Congress also has a role to play in this endeavor,

and we will continue to work together to codify needed reforms to protect American workers, prevent

outsourcing and promote fairness in the program.”

• Trump EO: Buy American and Hire American, dated April 28, 2017

“Best and Brightest”

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• The current LCA form may be found here.

• On August 3, 2017, DOL announced its intention to revise:

– Form ETA 9035, the wage and working condition Labor Condition Application (LCA) attestation, including Form

ETA 9035CP accompanying instructions, and a new Appendix for the Form ETA 9035/ 9035E; and

– Form WH-4 Nonimmigrant Worker Information Form, a Wage and Hour Division form that interested parties fill

out to report alleged H-1B violations by an employer

• Revisions are “[i]n accordance with the Secretary's June 6, 2017 News Release, which called for proposed form

changes to better protect American workers, confront fraud, and increase transparency”

• Public comments must be submitted in accordance with the Federal Register notice instructions by October 2, 2017

DOL Proposed Changes To The LCA Form

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• “Basis for the visa classification supported by this application (indicate total workers in each applicable category)”

• “Identify the source used for the prevailing wage (PW) (check and fully complete only one): a Prevailing Wage Determination

(PWD) issued by the Department of Labor; a PW obtained independently from the Occupational Employment Statistics

(OES) Program; a PW obtained using another legitimate source (other than OES) or an independent authoritative source”

• “Rate of Pay” becomes “Wage Rate Paid to Nonimmigrant Workers”

• “Enter the estimated number of workers that will perform work at this place of employment under the LCA”

• “Indicate whether the worker(s) subject to this LCA will be placed with a secondary employer at this place of employment,”

and “if ‘Yes’…, provide the legal business name of the secondary employer”

• “Important Note: The employer must define the intended place(s) of employment with as much geographic specificity as

possible. Each intended place(s) of employment listed below must be the worksite or physical location where the work will

actually be performed and cannot be a P.O. Box. The employer must identify all intended places of employment on the

LCA. 20 CFR 655.730(c)(5)….”

Highlighted Proposed Changes

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• “Wages: The employer shall pay nonimmigrant workers at least the prevailing wage of the employer’s actual wage,

whichever is higher, and pay for non-productive time. Offer nonimmigrant workers benefits and eligibility for benefits

provided as compensation for services on the same basis as the employer offers to U.S. workers. The employer shall

not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs

connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the

employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information.

20 CFR 655.731”

• “Working Conditions: The employer shall provide working conditions for nonimmigrants which will not adversely affect

the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall

extend for the duration of the validity period of the certified LCA or the period during which the worker(s) working

pursuant to this LCA is employed by the employer, whichever is longer. 20 CFR 655.732”

Highlighted Proposed Changes: Attestations

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• “Strike, Lockout, or Work Stoppage: At the time of filing this LCA, the employer is not involved in a strike, lockout, or

work stoppage in the course of a labor dispute in the occupational classification in the area(s) of intended employment.

The employer will notify the Department of Labor within 3 days of the occurrence of a strike or lockout in the

occupation, and in that event the LCA will not be used to support a petition filing with the U.S. Citizenship and

Immigration Services (USCIS) until ETA determines that the strike or lockout has ended. 20 CFR 655.73

• “Notice: Notice of the LCA filing was provided no more than 30 days before the filing of this LCA or will be provided on

the day this LCA is filed to the bargaining representative in the occupation and area of intended employment, or if there

is no bargaining representative, to workers in the occupation at the place(s) of employment either by electronic or

physical posting. This notice was or will be posted for a total period of 10 days, except that if employees are provided

individual direct notice by e-mail, notification need only be given once. A copy of the notice documentation will be

maintained in the employer’s public access file. A copy of this LCA will be provided to each nonimmigrant worker

employed pursuant to the LCA. The employer shall, no later than the date the worker(s) report to work at the place(s) of

employment, provide a signed copy of the certified LCA to the worker(s) working pursuant to this LCA. 20 CFR

655.734

Highlighted Proposed Changes: Attestations

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AAO non-precedent decision, AILA Doc. No. 15041361, posted on April 13, 2015

DHS/ USCIS over reliance on OOH to define minimum requirements for “specialty occupation”

In Matter of Simeio Solutions LLC, 26 I&N Dec. 542 (AAO 2015)

USCIS policy memo, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for

Purposes of Section 204(j) Job Portability, dated March 18, 2016

USCIS policy memo, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions,

dated March 31, 2017

Mission Creep

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INA § 212(p)(4)

• DOL uses, or makes available to employers, a governmental survey to determine the prevailing wage, such

survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of

supervision

• Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3,

the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting

that quotient from the second level

INA § 212(n)(1)(G): “The Secretary of Labor shall review such an application [a Labor Condition Application] only for

completeness and obvious inaccuracies.”

INS General Counsel Opinions, Genco Op. No. 94-21, April 12, 1994

“INS Procedure for Processing Debarment of Employer Pursuant to Sec. 212(n)(2)(c)(ii) of the INA: INS has no

statutory authority to review or selectively enforce debarment proceedings, but must accept the Secretary’s

determination that the violation is sufficient to warrant debarment.”

Mission Creep

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• March 31, 2017 USCIS policy memo:

– Scrutiny began with the occupation of “computer programmer” under the premise that most CP positions would

not qualify for H-1B visa class, because not all such positions require a 4-year bachelor's degree or higher

– Scrutiny has expanded across occupations beyond CP, now encompassing most Level-1 positions

• DOL prevailing wage guidance: Employment and Training Administration

Prevailing Wage Determination Policy Guidance Nonagricultural Immigration Programs (revised November 2009)

• Level 1 (entry) wage is for positions that require a basic understanding of the occupation for employees who:

– Perform routine tasks that require limited, if any, exercise of judgment, and

– Work under close supervision and receive specific instructions on required tasks and results expected

DOL And Level-1 Wages

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8 C.F.R. § 214.2(h)(4)(iii)(A) – “to qualify as a specialty occupation, the position must also meet one of the

following criteria:

1. “A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the

particular position;

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 the

duties is usually associated with the attainment of a baccalaureate or higher degree.

Ways to Meet “Specialty Occupation”

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1. Challenges abound: amplified scrutiny of foreign nationals' backgrounds

– DHS/ USCIS

• FY2018 H-1B cap cycle, H Change of Employer, H Extension, H Amendment

• More DHS/ USCIS RFEs and denials challenging lower-level professional categories

– DOS: visa stamping

– DHS/ USCPB: POE

– Increased DHS/ FDNS site visits

2. The employer has not “sufficiently established” that the LCA in a petition “corresponds” to the position described in the

petition

3. Whether a Level-1 LCA appropriately supports the position described in a given H-1B petition

4. Whether the O*Net occupational class in a given LCA supports the position described in a given H-1B petition

Challenge: Level-1 Wages

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• Even in a closely supervised, entry-level position, an incumbent in the role would still need to perform

complex tasks relating to the specialized field of the degree

• Occupation is complex and thus require a bachelor’s degree in a specialized field

• Worksheet in DOL prevailing wage guidance (“Appendix C: Worksheet for Use in Determining OES Wage

Level”):

– Occupation requires a bachelor’s degree and up to 2 years of experience = Job Zone 4 occupation

– Position requires skills that encompassed in the O*NET tasks, work activities, knowledge, and Job

Zone examples for the selected occupation

Level-1 Wages May Still Qualify For H-1B Visa Class

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March 3, 2017PPS temporarily suspends H-

1B petitions received on April 3, 2017

June 23, 2017PPS is again be available as of June

26, 2017 for based on the Conrad 30 Visa Waiver and other

governmental interest waivers

TBD

USCIS PPS Announcements

Limited resumption PPS for a very narrow

class of H-1B cases does not resolve the

vast majority of concerns and issues

related to the lack of PPS.

USCIS’s Premium

Processing Service (“PPS”)

program allows a petitioner to

receive a decision on its case

within 15 calendar days upon

payment of an additional

government filing fee of

$1,250.

H-1B Visas: Trends, Troubles & The Look Ahead | September 7, 2017 | 15

• Start date for PPS suspension was also the first filing day for cap-subject H-1B petitions for FY2018

– Affected individuals who have not previously held H-1B status, such as many recent college graduates

F-1 Students:

• Work authorization impacts: “cap gap” and Optional Practical Training (OPT) with CIS-pending or approved

H-1B petitions; without PPS, “cap gap” work authorization will end until H-1B cap petition is approved

(although the individual is permitted to remain in the U.S. pending completed processing of the petition);

U.S. departure void “cap gap” work authorization

• Travel impacts: travel out of U.S. nullifies effect of “change of status” petition from F-1 into H-1B; to enter in

H-1B status, the individual will either have to gain H-1B visa stamping at a U.S. consulate, or the sponsoring

employer will need to file another H-1B petition for “change of status”

• All H-1B cap cases filed for FY2018

• H-1B petitions that are exempt from the annual cap: extensions of stay (EOS), requests to amend existing H-1B status,

and requests for changes of employer

April 3, 2017 PPS Suspension: Deep Impacts

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• Impacts include:

– Longer adjudications

– Disrupted work authorization and travel in “change of status” H-1B petitions

– Delayed start-dates for those who opt to begin new H-1B employment upon USCIS approval of H-1B “change of

employer” petitions

– Disrupted work authorization for individuals with H-1B “extension of stay” petitions pending with USCIS >240

days

– Driver’s license renewals

– Delayed renewals of H-4 EADs

• Very narrow bases for USCIS expedition of cases

– At USCIS discretion

– Strict criteria: severe financial loss to a company or person; an emergency situation; humanitarian reasons;

nonprofit organization whose request is in furtherance of U.S. cultural and social interests; an official U.S.

government entity validates that H-1B petition delay will be detrimental to the government; USCIS error; or

compelling USCIS interest of USCIS

April 3, 2017 PPS Suspension: Deep Impacts

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• USCIS evidentiary standards seem to increase: burden on proof in on employer; “preponderance of the evidence”

(really?)

• RFE trigger: beneficiary’s education may not be in the exact field for proposed H-1B employment, but in a related field

• RFEs are increasingly requiring that employers explain and document how a beneficiary’s degree (U.S. or foreign

equivalent) is related to the proposed H-1B position

• In cases where a beneficiary is relying on a combination of formal education and progressively responsible work

experience, or is lacking formal education and is relying on 12 or more years of work experience (the “3 for 1” rule

under CIS regulation), the evidence standard

• RFE requirements for more detailed job description, documentation of other workers with the employer who also hold

at least a bachelor’s degree in a specific field, job vacancy announcements used for the offered position, etc.

Narrowing Fields Of Specialized Study Needed For H-1B

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• Employer evidence:

– Evaluation and/ or expert opinion letter relating to position and/ or beneficiary’s qualifications for the position

– Proof that the evaluation and/ or expert opinion letter was prepared by an official who has authority to grant

college-level credit at an accredited college or university with training and/or work experience in the profession

– Letters validating beneficiary’s experiential

• USCIS is increasingly challenging prior employer’s letters on the bases that they’re insufficient, lack of

specificity, etc.

Narrowing Fields Of Specialized Study Needed For H-1B

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• INA § 214(n)

– Requires only a “filing” of an H-1B “change of employer” petition to permit an H-1B worker to lawfully begin

employment with a new employer; can be proved through an overnight courier delivery confirmation rather than

waiting for the I-797 receipt notice

– Under 2005 USCIS policy, an employer could gain an H-1B “change of employer” approval for an individual in a

“period of stay authorized by the Attorney General,” even if that status was not H-1B

• But under current USCIS practice, the H-1B worker must already be in H-1B visa status for porting

– E-Verify queries will result in non-confirmations when porting H-1B worker did not immediately hold H-1B

status

– In April 2011 USCIS confirmed its interpretation in a question-and-answer session with the American

Immigration Lawyers Association (AILA): “H-1B portability pursuant to AC21 . . . applies to nonimmigrants who

are currently in H1B status or an authorized period of stay based on a timely-filed extension of an H1B status

petition.”

“Change of Employer” Petitions And I-9

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• On occasion, after visa issuance, information becomes available to DOS that shows the visa holder either was not

qualified to receive the visa or has become ineligible for the visa after its issuance

• Effective April 27, 2011, U.S. consular officers, posted at U.S. embassies and consulates abroad, gained increased

power to:

- Revoke previously-approved visa stamps at any time after issuance, at the sole discretion of the officers

- Temporarily revoke approved visa stamps, while a final revocation is under consideration

In lieu of reconsideration (as permitted under prior rule)

Temporary revocation, pending the outcome of an investigation as to whether a final revocation is

appropriate.

If visa holder is later found to be eligible for that visa, the visa will be reinstated with no need for a new

visa application

If a final revocation is issued, then the visa holder needs to apply for a new visa at a U.S. embassy or

consulate

• Expansion of consular visa revocation and provisional revocation was justified to security concerns

• Risk of visa stamp revocation on basis of H-1B class readjudication?

Pitfalls of DOS’s H-1B “Provisional” Visa Revocations

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• USCIS-pending “change of status” petition to H-1B class

– Traveling outside the U.S. will result in abandonment of COS request

– If H-1B petition is later approved, beneficiary will need to apply for an H-1B visa stamp at a U.S. consulate before

seeking U.S. entry in H-1B status

– PPS no longer an option; U.S. visa stamping and re-entry subject to USCIS processing delays

• “Change of employer” H-1B petition

– When a beneficiary holds a valid H-1B visa based on an H-1B status sponsored by a previous employer, the

beneficiary does not need a new visa for re-admission into the U.S.

– PPS no longer an option; U.S. re-entry should be permitted on basis of currently valid H-1B visa stamp and

USCIS I-797 receipt notice for new employer’s petition

• “Extension of Status” H-1B petition

– “Last action” concept

– PPS no longer an option

Risks And Restrictions On H-1B And H-4 Travel Abroad

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• “Amendment” H-1B petition

– “Last action rule”

– PPS no longer an option

• “Last Action” Concept

– Not in USCIS regulation Tom Cook memo for H EOS, not for COS

– Determines which I-94 entry document governs when an H-1B beneficiary travels outside of the U.S. when H-1B

petitions are pending for “extension of status,” “change of employer,” or “amendment” are pending with USCIS

– The I-94 with the latest effective date is the controlling document as to period of authorized stay (status)

– If USCIS approves an H-1B petition - for “extension of status,” “change of employer,” or “amendment” – while a

beneficiary is outside of the U.S., who then seeks to re-enter the U.S. using a valid visa stamp, USCPB will issue

an I-94 document with the earliest possible expiration

– Travel while petition for “change of status” to H-1B is USCIS-pending will nullify COS request; USCIS will

approve petition for “consular processing” and vH-1B visa stamping will be required before an H-1B entry

Risks And Restrictions On H-1B And H-4 Travel Abroad

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• Advance parole policy

– A special form of permission to return to the U.S. without a visa stamp in a passport

– Until recently, USCIS’s standard practice has been to allow noncitizens — largely Green Card

applicants — already granted a period of advance parole to apply for, and receive renewal for another

term before the current grant expires

– Form I-131 instructions state: “If you depart from the United States before the Advance Parole

Document is issued, your application for an Advance Parole Document will be considered

abandoned.”

– Under this USCIS policy reversal, AP may no longer serve as a “fallback” to H-1B, L-1 visa stamps for

individuals with advanced Green Card cases (those with USCIS-pending I-485 applications)

– For more: Immigration Flippancy: USCIS Impedes Travel Abroad for No Good Reason

Risks And Restrictions On H-1B And H-4 Travel Abroad

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H-1B Visas: Trends, Troubles & The Look Ahead | September 7, 2017 | 25