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