Introduction

It is common knowledge, even outside the immigration world, that

the Trump Administration is attempting to tighten immigration. One

component the administration has talked about is converting the

employment-based immigration system utilizing the H-1B visa to be

more merit based rather than lottery based. Immigration

practitioners have already seen a trend in this direction from more

requests for evidence for lower level professional categories,

increased site visits, and amplified scrutiny of foreign national

background from the U.S. Customs and Border Patrol (CBP). As

Senator Grassley's Quest to Combat H-1B Visa Fraud and

Impact on the Program

Senator Chuck Grassley (R-IA) has been a long critic of the H-1B

visa program, which allows companies to petition for foreign

nationals with the equivalent of a U.S. Bachelor's degree to

work in a “specialty occupation,”1 meaning a

position that requires a Bachelor's degree or higher with

specific and complex duties. In January 2017, Senator Grassley and

Dick Durbin (D-IL ) released legislation pertaining to the H-1B and

L-1 visa to ensure companies prioritize American workers and ensure

the “best and brightest” have a preference for an H-1B

visa.2 Consequently, Grassley and Durbin's bill

would change the selection process from a random process to a

merit-based system. Currently, visas are administered under a

lottery process where 65,000 petitions and additional 20,000

petitions for those with a U.S. Master's degree are selected at

random out of the individuals that apply for the H-1B

visa.3 For the fiscal year 2018, USCIS received 199,000

H-1B petitions during the filing period.4

Grassley's bill also would provide the U.S. Department of

Labor (DOL) enhanced authority to review, investigate, and audit

employer compliance with program requirements, as well as to

penalize fraudulent or abusive conduct. It requires the production

of extensive statistical data about the H-1B and L-1 programs,

including wage data, worker education levels, place of employment

and gender.

In June 2017, Senator Grassley requested additional information

from the DOL regarding the extent to which U.S. companies employ

H-1B workers through contracting companies and the impact this may

have on wages and American workers.5 Senator Grassley

has praised actions taken by President Trump, the Labor Secretary

Acosta, and Department of Homeland Security in combating visa fraud

and protecting American workers. One such recent activity includes

a memorandum issued by the United States Citizenship and

Immigration Services (USCIS) discussing lower level occupations and

position levels.

Computer Programmer Memo

On March 31, 2017, USCIS released a Policy Memorandum titled,

“Rescission of the December 22, 2000 'Guidance memo on

H-1B Computer Related Positions.'”6 In the

memorandum, USCIS indicates that they take issue with the

occupation of Computer Programmer, and based on DOL's Bureau of

Labor Statistics Occupational Outlook Handbook (OOH), concludes

that most Computer Programmer positions would not qualify for the

H-1B category because not all Computer Programmer positions require

a bachelor's degree or higher. This would be an occupational

classification for companies to avoid in the future as it may lead

to additional scrutiny including requests for evidence or

denials.

When filing an H-1B position, the sponsoring company must

complete a Labor Condition Application (LCA) submitted to the DOL.

On the LCA, the employer must select one of four wage levels for an

occupation based on the comparison of the employer's job

requirements to the occupational requirements. Level 1 is for the

most entry level positions while Level 4 is reserved for those most

“fully competent” in the position. Level I wage rates are

assigned to job offers for beginning level employees who have only

a basic understanding of the occupation and perform tasks that

require limited, if any, the exercise of judgment and provide

experience and familiarization with the employer's methods,

practices, and programs.

The recent USCIS memo concludes a Level 1 (entry level)

designation for a position, covered under the Computer Programmer

occupation classification, would not qualify as a specialty

occupation position. As a result, this combination (i.e., Level 1

and the Computer Programmer SOC code) would probably be one to stay

away from if trying to show position is a specialty occupation.

This is consistent with Senator Grassley's bill and messages to

establish more of a merit based system focusing on the best and the

brightest over those that are more entry level (i.e., those only

deserving of a level 1 wage).

The memorandum indicates officers should scrutinize the wage

level on the LCA to make sure wage levels correspond to job duties.

As such, as a general practice, employers will probably want to

stay away from Level 1 when processing H-1B cases, and will likely

see more RFEs, if Level 1 wage designation is selected.

The memorandum also affirms that the petitioning employer has

the burden of proof to show that position is a specialty occupation

and un-conclusive statements from the OOH are not sufficient to

show position is a specialty occupation. Further, the memorandum

indicates that merely requiring a degree for the position, without

more evidence, does not, in and of itself, support the notion that

the position is a specialty occupation. Therefore, companies may

need to rely on more expert opinions and follow very closely

regulation in showing position meets one of the criteria for

establishing the position is a specialty

occupation.7

Immigration practitioners have already seen an increase in

Requests for Evidence surrounding wage levels and the Computer

Programmer Occupation

Requests for Evidence (RFE's)

Subsequent to the USCIS memorandum and announcements from

various government agencies regarding increasing enforcement,

immigration practitioners have started seeing RFE's requesting

additional information pertaining to Level 1 wages. Specifically,

the RFE's have summarized the DOL's Level 1 definition and

indicated that the petitioning employer's assertion that the

position is a specialty occupation by virtue of the highly complex

job duties is in conflict with the Level 1 wage classification. The

RFE continued to point out that based on information from the

DOL's OOH, some employers only require a postsecondary

certificate for the position selected8 and, therefore,

“a bachelor's degree in a specific specialty does not

appear to be a minimum requirement.” We anticipate employers

will see more scrutiny over petitions selecting Wage Level 1 and

especially those which the OOH does not specifically require a

minimum of a U.S. bachelor's degree or its equivalent.

DOL Penalties

In addition to enhanced scrutiny over petitions, employers

should expect to see additional penalties for abuse. In June 2017,

Secretary of Labor Acosta announced actions to increase protections

for American workers while more aggressively confronting entities

committing visa program fraud and abuse.9 In this

announcement, the Secretary directed the Wage and Hour Division to

conduct additional civil investigations and enforce labor

protections, directed the Employment and Training Administration

(ETA) to propose changes to the LCA, and directed the ETA to

coordinate the administration and enforcement of visa programs to

refer criminal fraud to the Office of the Inspector General.

Secretary Acosta also indicated, the department will also continue

to work with the departments of Justice and Homeland Security to

further investigate and detect visa program fraud and abuse.

Currently, willful violations on an LCA could have civil

monetary penalties as high as >$51,588 and could face

debarment.10 It is incredibly important that employers

ensure the information on applications and petitions are accurate

and they are following all government policies.

Footnotes

1. https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models

2. https://www.grassley.senate.gov/news/news-releases/grassley-durbin-introduce-reforms-skilled-non-immigrant-visa-programs

3. https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season

4. https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2018

5. https://www.grassley.senate.gov/news/news-releases/grassley-asks-more-labor-department-data-praises-recent-efforts-made-combat-h-1b

6. https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

7. 8 CFR 214.2(h)(4)(ii); 8 CFR

214.2(h)(4)(iii)

8. The RFE our office received was for a Network and

Computer Systems Administrator position.

9. https://www.dol.gov/newsroom/releases/opa/opa20170606

10. https://www.dol.gov/whd/immigration/h1b.htm

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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