United States: USCIS Should Leave H-1B Specifics To Labor Department

USCIS documents show the agency instructed its officers to supersede the authority and expertise of the Labor Department in determining certain eligibility requirements for H-1B visa applicants. Seyfarth Shaw immigration attorneys predict more lawsuits and warn this turf war will result in a loss of qualified candidates who leave and end up competing against U.S. companies.

Pressed by a FOIA lawsuit brought by the American Immigration Council, the U.S. Citizenship and Immigration Services (USCIS), the agency empowered to decide on requests for work visas, green cards, and citizenship, was recently required to serve up documents providing the roadmap for what under the Trump administration has become a dramatic surge in denials of visa requests on behalf of needed high-skilled workers.

The documents showed how the agency instructed its officers to supplant the authority and expertise of the Department of Labor to determine prevailing wages for workers in specialty occupations under the H-1B visa category.

Although USCIS officers have no training or expertise in determining prevalent wages in each of the country's metropolitan areas, the internal documents showed them how they could and must deny H-1B petitions unless employers offered artificially inflated wages for entry-level professionals.

The headquarters office of USCIS made this change knowing that it "may conflict with current practice at the [service] centers" where the decisions are made to approve or deny H-1B visa petitions, according to an April 6, 2017, email from Stephanie Doumani, branch chief for USCIS service center operations.

Her email unleashed responses from the Vermont and California service centers expressing concerns the change would likely lead to lower approval rates, contradictory decisions by different officers, and slower processing—in other words, outcomes which are now all too apparent.

Overstepping Bounds

Another excursion out of USCIS' mandate were instructions that require USCIS case officers to reject petitions requiring a bachelor's degree unless a Labor Department's publication, the Occupational Outlook Handbook, or OOH, confirms that only a narrow range of academic majors are acceptable to perform in the sponsored job.

Showing a tragically uninformed understanding of the manner in which job descriptions and their incorporated educational requirements are created in real industries, the agencies' approach appears as a game of regulatory "you didn't say Simon says."

Thus, a petition for a software engineer could not be approved for a university graduate with an engineering degree in a situation where the employer would also accept a degree holder who majored in data science or mathematics if the OOH did not expressly state that these alternative degrees are also appropriate.

One problem with this type of turf theft is that it can make your officers look silly. The OOH contains a disclaimer that says it "is not intended to, and should never, be used for any legal purpose," and "should not be used to determine if an applicant is qualified to enter a specific job in an occupation."

Another problem is that the USCIS mandate to crib from the OOH contradicts what Congress required when it created the modern H-1B visa category. As one federal judge said in September in rejecting a USCIS H-1B denial, "if the position requires the [job candidate] to apply practical and theoretical specialized knowledge and a higher education degree[,] it meets the requirements. Nowhere in the statute does it require the degree to come solely from one particular academic discipline."

The recently unveiled memoranda and emails will likely accelerate the spate of recent federal lawsuits against USCIS brought by immigration attorneys and their clients. These cases have successfully challenged the tougher H-1B standards (founded on the agency's newly invented grounds) under the Administrative Procedure Act as arbitrary and unlawful.

The trend toward more APA litigation is also bolstered by a recent U.S. Supreme Court case, Kisor v. Wilkie, which ruled that federal judges should not defer to an administrative agency's supposed subject matter expertise when its interpretation of its own regulations inexplicably changes or creates "unfair surprise."

Eligibility Higher For No Good Reason

Immigration lawyers are also compiling ever larger binders of evidence to prove that knowledge workers with relevant degrees meet the USCIS's more exacting, newly concocted requirements for the coveted H-1B specialty-occupation category.

The bundles of evidence submitted with new H-1B petitions will now surely include the slew of newly unearthed USCIS communiques revealing that the eligibility standards are higher for no good reason.

A far greater problem, however, is that agency breaches beyond their assigned areas of authority and expertise cause unforeseen and decidedly harmful consequences. In the case of USCIS's overstepping into the DOL's jurisdiction, American companies and their employees are unjustly deprived of the expertise and creativity of bright noncitizens who help our nation compete in the global economy.

There is no reason to force bright minds, many of whom our universities have educated, to leave and then compete against us from abroad. When this happens, America becomes less great, and only our adversaries win.

Previously published in Bloomberg Law.

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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