Increased Scrutiny Over H-1B Visas: Beware Of Level 1 Wages!
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
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.