United States: Business Immigration: Future Enterprise Vs. A Reactionary Administration

Employers continue to face the challenge of identifying talent that meets the current and future needs of the service economy—workers who have a diverse skill set, and who are agile and mobile.  However, when attempting to hire foreign national workers under long-established work visa programs, employers run into the "Big, Beautiful (virtual) Wall" which is under construction by DHS.

Last week I had the pleasure of attending the Corporate Legal Operations Consortium Annual Conference, which assembled forward-thinking thought leaders in legal operations who embrace the adoption of technology, talent with diverse skill sets, and alternative work arrangements to streamline the delivery of services.  Employers across  most industries are also adopting the new realities of human capital and technology in order to keep abreast of changing client demands.

I then returned to an unfortunate reality in my office on Thursday: a sea of paperwork from USCIS, primarily consisting of burdensome Requests for Evidence (RFEs) which challenge the approvability of petitions filed to the Agency.  USCIS has steadily increased its denial rates for particular visa categories.  For example, L-1B petitions for intracompany transferee employees in the "specialized knowledge" category were denied at a rate of 7% in 2007; 24% as recently as 2015; and 29% in the last two quarters of FY2017, according to USCIS data from 2017 and 2015.

DHS Legislation by Another Name

Recently USCIS has introduced the concepts of "legislation by adjudication" and "legislation by policy memo" (my terms, not theirs) in a blatant effort to make it more challenging for U.S. employers to sponsor talented foreign national employees.  USCIS has pointed to the current Administration's "Buy American Hire American" Executive Order, and the more recent USCIS Policy Memorandum on offsite H-1B employment as a justification for an marked increase in RFEs and Denials of employer-sponsored petitions of all types.

Employers Demand a more Nimble and Mobile Workforce

Meanwhile, the U.S Department of Labor through its Futurework Initiative has acknowledged that, "America does not face a worker shortage but a skills shortage," and recognized the need for equipping all Americans with the tools to succeed in this new economy."

Our employer clients across many industries echo this sentiment when identifying their requirements for talent.  Education is crucial, but more critical is for employees to embrace technology and data science across all types of occupations.  In short, employees can no longer be slotted into a particular occupation, but instead need skills that bridge multiple disciplines.

Here Comes USCIS with their Silos

USCIS' clear message to employers is "not so fast." The Agency has recently created new reasons to challenge and deny petitions for H-1B Temporary Workers.  By law and regulation, the main requirements for H-1B sponsorship include demonstrating that the proffered position requires a degree in a specific set of fields, and showing that the foreign national candidate / employee has a four-year degree or equivalent in that field.  These criteria sound straightforward, and historically USCIS had consistently adjudicated H-1B filings.  This has changed recently in two main areas where USCIS has adopted the "Silo" approach to H-1B eligibility:

  1. Positions can no longer consist of a "combination of occupations" and must fall squarely into a single DOL Foreign Labor Certification (FLC) job classification; and
  2. Employers can no longer require a range of related degrees to qualify for a single position (think Computer Science, Electrical Engineering or Information Technology for a Software Engineer position).  

USCIS' current positions strain both business reality and applicable regulatory and administrative law guidance.  In fact, USCIS appears to be taking the practice of hiring back to 1873, when the first recorded silo was built in America—in Spring Grove, Illinois, to be precise—according to the International Silo Administration.

What Can Employers Do?  Bring a 30-foot Ladder, and Maybe a Rope

Employers must recognize the current landscape and be in a position to climb the virtual 30-foot wall being constructed by USCIS.  USCIS is limiting the occupations, educational backgrounds and worker mobility options that are eligible for H-1B classification.  However, many tools still exist to combat this culture at USCIS, through the use of existing regulations, case law and policy memos that support the long-standing ability to obtain H-1B status for qualified foreign workers.  Much like Candidate Trump's advice on how to scale the wall, these existing legal options can benefit employers. 

Employers can take advantage of DOL regulatory definitions that provide long-standing worksite exemptions for a mobile workforce, to combat the USCIS policy memo on offsite employment.  They should also carefully review contracts, Statements of Work and Master Services Agreements for third-party work placement agreements, to ensure that these documents accurately reflect the employer-employee relationship with the H-1B worker.  Finally, employers should also review current job descriptions so that they do not inadvertently lead USCIS to the mistaken conclusion that a position requires a combination of disparate occupations.  A thoughtful and thorough approach to nonimmigrant employment visa sponsorship will still enable employers to hire the right staff to move their business forward.

By the Way—Director Cissna, Your Job is not a Specialty Occupation

In related news, USCIS Director Francis Cissna issued an April 4 letter to Senate Judiciary Committee Chairman Chuck Grassley with proposed changes to business immigration options, including the notion of "strengthening the integrity of the H-1B program."  While we do not see much integrity in ignoring applicable regulations and case law in denying historically approvable H-1B petitions, we are not focusing on that letter in today's blog.

Instead, according to current USCIS standards established under Director Cissna's leadership, we take a moment to point out that the Director's position does not qualify as a specialty occupation.  The job description for the position clearly covers multiple DOL FLC job classifications.  Moreover, the recent history of USCIS Directors include individuals with a J.D., a Ph.D. in International Relations, and a Bachelor of Science degree.

While I don't suspect that the USCIS Director requires H-1B sponsorship, I do believe the lack of a degree requirement places this role at the GS-5 level.  Given the Administration's focus on "integrity," I look forward to hearing of the new classification and pay scale for the Director role.

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