H1B News: Preparing for H1B Cap Season in Post-Trump World

In recent days, the H1B news has been extremely pessimistic. The new administration’s memos and executive orders issued in 2017 have increased scrutiny and rigid enforcement of the H1B program. Fortunately, there are practical steps that can be taken to better navigate the H1B visa program in an immigration environment wrought with uncertainty.

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H1B News – Prepare Early for H1B Cap Season

This article provides guidance on how to best prepare for the upcoming H-1B cap season. It also provides a timeline so you can properly plan ahead. This article also sets forth current guidance on how to obtain an approved H-1B visa for computer-related occupations and how to deal with Level I wages.

The experienced immigration attorney at Columbus, Ohio-based Porter Law Office, LLC has in depth experience with securing immigration benefits including H-1B visa petition filings. If you need assistance with an H-1B visa, or need advise on current H1B news, contact the business immigration lawyer at Porter Law Office, LLC in Columbus, Ohio today.

New H-1B Environment

USCIS has released data indicating that H-1B approvals were significantly down last year (that is, in FY 2018). This year’s H-1B cap season (FY 2019) will open on April 2, 2018 (April 1 is a Sunday). The Trump administration has put a squeeze on the program in an effort to protect U.S. workers. The time is now for immigration counsel and their clients to get ready for the upcoming H-1B cap season. But what have we learned from last year’s H-1B filings?

There is no dispute that H-1B visas are now more difficult to obtain. There have been more Requests for Evidence (“RFE’s”), Notices of Intent to Deny (“NOID’s”) and denials in light of the “Buy American and Hire American” Executive Order and the 2017 USCIS Computer Programmer Policy Memorandum. But careful preparation and planning can help limit the draconian effect of these policies and set your organization on a path towards more H1B approvals.

Steps to Prepare for H-1B Cap Season

Below are some best practices and filing strategies to help you successfully navigate the increasingly complex H-1B process.

  1. Get Started Early – This is not H1B news. This is something you should be doing every year. To prepare for the H-1B cap season (which is a lottery system), you must start early. From a practical standpoint, starting early helps you obtain solid evidence, draft better position descriptions, and identify any potential issues that may arise in the H-1B process. Remember, haste makes waste. So start early to increase your chances of filing an successful petition.
  2. Notify Immigration Counsel – This should be done in January, if not earlier. In fact, it is the first thing you should do when starting your H-1B application. Have your counsel set a timetable, evidentiary goals, and reminders to ensure your H-1B cap petitions are filed timely and accurately.
  3. Evidence Required By February – In February, you should have all employer information ready to be reviewed by counsel. The evidence required will relate to the legitimacy of your company and that is it is currently engaged in an active business. USCIS will need this in order to allow your company to sponsor a foreign national for employment. You should also have all potential H-1B candidates identified and be ready to submit their information to counsel. Your attorney will review their H-1B eligibility and discuss with you any potential concerns with their case.
  4. Draft Job Descriptions – Once you have identified good candidates, you should immediately start drafting solid job descriptions. Many H-1B visa denials have been issued because the employer drafts the job duties too generally. Copying duties from the Occupational Outlook Handbook (“OOH”) is bad as well. USCIS uses the job description to determine your worker’s eligibility. It is a major component of the case and needs started very early on in the process. Benchmark for completion should be end of February.
  5. Labor Conditions Application (“LCA”) – In early-March, ensure that your counsel has sufficient information to draft the internal posting notices. This needs done before submitting the LCA. Further, this is when you will need to discuss the wage levels for your candidates. The Level I wage has created adjudication issues after the USCIS Guidance Memo on H1B Computer Related Positions found here. In addition, the LCA takes seven days to be certified by the Department of Labor (“DOL”). If you file the LCA on March 30th, you will not be able to file the H-1B petition on the first day of the cap season.
  6. Ready to File – By March 15, your immigration counsel should have all evidence, forms, support letters, public access files, needed to finalize each H-1B petition. This will ensure that your H-1B visa petitions are ready to be submitted timely to be received by USCIS on April 2. You should always check USCIS.gov regularly for updates to confirm the actual open date.

Do not rush this H-1B cap season. The stakes are too high. You can properly plan a good case if you start early. If you rush, you may make mistakes that could cost you an accepted H-1B visa. This is a time consuming and detailed process. The administration is making it more difficult. So, plan ahead and be prepared.

Where are the H-1B rules found?

Perhaps one of the biggest problems facing employers today is that they do not know either (a) where the H-1B rules are found; or (b) what they require. This section provides a basic legal framework for the H-1B category. It also indicates the type of evidence needed for computer-related occupations.

Remember, there are two basic components of any H-1B case. First, the position must meet the requirements of a specialty occupation. Second, the beneficiary must qualify for the position. Keeping these in mind will help clarify all these rules in light of the recent negative H1B news.

Section 101 (a) (15) (H) (i) (b) of the Immigration and Nationality Act (the “INA”) provides, in part, for the classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform services in a specialty occupation: an alien … who is coming temporarily to the United States to perform services … in a specialty occupation described in section 214(i)(1) with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 212(n)(1).

Section 214(i)(1) defines the term “specialty occupation” as one that requires:

  • (A) theoretical and practical application of a body of highly specialized knowledge, and 
  • (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Further, section 214(i)(2) of the INA outlines the fundamental requirements of a specialty occupation:

  • (A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,
  • (B) completion of the degree described in paragraph (1) (B) for the occupation, or
  • (C) (i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The regulation at 8 C.F.R. § 214.2(h)(4 )(ii) largely restates this statutory definition, but adds a non-exhaustive list of fields of endeavor. The term “specialty occupation” is defined at 8 C.F.R. 214.2(h)(4)(ii) as: an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

In addition, the regulations at 8 C.F.R. 214. 2(h)(4)(iii)(A) provide that, to qualify as a specialty occupation, the offered position must 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 are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

The AAO has consistently interpreted the term “degree” to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139. 147 (1st Cir. 2007) (describing “a degree requirement in a specific specialty”‘ as “one that relates directly to the duties and responsibilities of a particular position”); Defensor v. Meissner, 201 F.3d 384. 387 (5th Cir. 2000).

When determining whether a particular job qualifies as a specialty occupation, USCIS does not use a title, by itself. The specific duties of the offered position combined with the nature of the petitioning entity’s business operations are factors that USCIS considers. Each position must be evaluated based upon the nature and complexity of the actual job duties to be performed with that specific employer. In addition, the beneficiary’s obtainment of a degree in a related area does not guarantee the position is a specialty occupation. Further, performing specialty occupation duties that are incidental to the primary functions is insufficient to establish that the duties to be performed qualify as a specialty occupation.

Specifically, the court explained in Royal Siam, 484 F.3d at 147, that: The courts and the agency consistently have stated that, although a general-purpose bachelor’s degree, such as a business administration degree, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify the granting of a petition for an H1B specialty occupation visa. See, e.g., Tapis Int’l v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf. Matter of Michael Hertz Assocs., 19 I & &N Dec. 558, 560 (Comm’r 1988) (providing frequently cited analysis in connection with a conceptually similar provision). This is as it should be: elsewise, an employer could ensure the granting of a specialty occupation visa petition by the simple expedient of creating a generic (and essentially artificial) degree requirement.

Immigration officers are reminded that USCIS does not bear the burden of establishing that a particular position does not qualify as a specialty occupation. Instead, the petitioner bears the burden of establishing eligibility for the benefit sought. Section 291 of the INA, 8 U.S.C. § 1361. Accordingly, USCIS officers may not approve a petition based on inconclusive statements from the Handbook about the entry-level requirements for a given occupation. Rather, the petitioner bears the burden to submit probative evidence from objective and authoritative sources that the proffered position qualifies as an H-1B specialty occupation.

H1B News for Computer-Related Positions

Based on the current version of the DOL’s Occupational Outlook Handbook (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 also meets one of the criteria at 8 CFR 214.2(h)(4)(iii). Section 214(i)(1) of the INA; see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).8

How to Meet the Specialty Occupation Criteria of 8 C.F.R. 214. 2(h)(4)(iii)(A)

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

To inform this inquiry. the AAO recognizes the Handbook as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. For a position under the occupational title “Computer Systems Analyst,” the Standard Occupational Classification code is 15-1121. The Handbook’s subchapter entitled “How to Become a Computer Systems Analyst” states that a bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming. The Handbook does not indicate that at least a bachelor’s degree in a specific specialty. or its equivalent, is normally the minimum requirement for these positions. As noted, the Handbook states that a bachelor’s degree in a computer-related field is “not always a requirement.” Rather, the Handbook states that many computer systems analysts may only have liberal arts degrees and programming or technical experience. The Handbook also states that although many computer systems analysts have technical degrees, such a degree is not always a requirement.

Practice Pointer: For Computer Systems Analysts, you now need to submit other information, not just info from the Handbook, from a probative source to substantiate the assertions regarding the minimum requirement for entry into this 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;

The second criterion presents two alternative prongs: “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” 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates on the common industry practice, while the alternative prong narrows its focus to the Petitioner’s specific position.

To satisfy this first prong of the second criterion, you must establish that the ”degree requirement” (i.e., a requirement of a bachelor’s or higher degree in a specific specialty or its equivalent) is common to the industry in parallel positions among similar organizations. The AAO generally considers the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree: whether the industry’s professional association has made a degree a minimum entry requirement: and whether letters or affidavits from firms or individuals in the industry establish that such firms routinely employ and recruit only degreed individuals.” See Shanti. Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (considering these “factors” to inform the commonality of a degree requirement).

If the Handbook is not in your favor, you must submit evidence from the industry’s professional association indicating that it has made a degree a minimum entry requirement. Furthermore, you must submit any letters or affidavits from similar firms or individuals in your industry attesting that such firms ”routinely employ and recruit only degreed individuals.”

The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is satisfied if you show that your particular position is so complex or unique that it can be performed only by an individual with at least a bachelor’s degree in a specific specialty, or its equivalent.

The job description, wage level, and information about your business are vitally important to prove this prong. The job duties cannot be vague, general tasks. They must convey actual day-to-day tasks within the context of asserted project(s). You must develop relative complexity or uniqueness as an aspect of the duties of the position, and identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Moreover, designation of the proffered position as a Level I entry-level position within the ”Computer Systems Analyst” occupational category would not support the claim that the position is particularly complex, specialized, unique compared to other positions within the same occupation. Therefore, the AAO could argue that the position is one with complex or unique duties relative to other computer systems analyst positions requiring a significantly higher prevailing wage. as such a Level III (experienced) or Level IV (fully competent) wage level.

The AAO has stated that a petitioner’s designation of a position as Wage Level I, entry-level position undermines its claim that the position is particularly complex, unique. and specialized compared to other positions within the same occupation. Nevertheless, 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 I, 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 qualities 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 2 14(i)(I) of the Act.

(3) The employer normally requires a degree or its equivalent for the position; or

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor’s degree in a specific specialty, or its equivalent, for the position. The employer must submit supporting documentation to substantiate its assertion that its systems analysts are typically required to hold a bachelor’s degree in a specific specialty. For instance, the AAO must be given evidence of how many systems analysts the company employs and what degrees they hold. The company would need to provide supporting documentation to substantiate the educational credentials of its systems analysts.

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. Again, as previously mentioned. if the worker’s duties are stated in vague, general terms that do not sufficiently convey their actual duties within the context of her asserted project, it will not meet this requirement. Therefore, a very well drafted job description is extremely important to the success of your case.

Placing a candidate in Wage Level I makes the fourth criterion that much more difficult to establish. The designation of the proffered position in the LCA as a Level I wage may make it not likely distinguishable by relatively specialized and complex duties.

Immigration Lawyer in Columbus, Ohio

H-1B Visa Representation and Update on H1B News

Porter Law Office, LLC has experience in securing H-1B visas for a wide variety of organization and individuals. The H-1B visa process is complex. There are strict federal labor laws and immigration rules and regulations. Columbus, Ohio immigration lawyer Matthew R. Porter, Esq. assists employers in complying with the H-1B visa regulations. We can help your organization with H-1B visa petition filings and compliance issues. If your organization is considering sponsoring a foreign national on an H-1B visa, contact Columbus, Ohio immigration lawyer Matthew R. Porter to discuss your H-1B visa options.