CLIENT ALERT: USCIS Resumes Premium Processing for H-1B Quota Petitions Only

On September 18, 2017, USCIS announced it would resume premium processing for all petitions filed in the FY 2018 fiscal quota.  However, premium processing is still suspended for petitions not filed in the quota, including extensions, amendments, transfers, and new NOT subject to cap filings.  At this time only the below categories may be premium processed:

  • Conrad 30 Waiver program;
  • Interested government agency waivers;
  • Certain H-1B petitions, not subject to the CAP (i.e. Non-Profit or Higher Education Sector); and
  • Petitions filed in the FY 2018 fiscal quota (i.e. on April 1, 2017).

With regard to all other H-1B Petitions not covered by the above, USCIS stated the following:

USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap, as agency workloads permit. However, remaining petitioners may submit a request to expedite their application if they meet the specific agency criteria. USCIS reviews all expedite requests on a case-by-case basis, and requests are granted at the discretion of the office leadership.[1]

Our office will continue to monitor premium processing services being resumed, and keep our clients updated.  If you wish to upgrade one, or multiple petitions filed in the CAP, we encourage you to contact your Case Manager, with a consolidated list of candidates for whom you wish to process in premium.  We look forward to assisting you through this process.

[1] See https://www.uscis.gov/news/news-releases/uscis-resumes-premium-processing-some-categories-applicants-seeking-h-1b-visas (last viewed September 19, 2017).

New Form I-9 Required, Beginning September 18, 2017

By: Crystal Conway[1]

 Beginning Monday, September 18, 2017, Employers are required to start using the new Form I-9, Employment Eligibility Verification, with edition date of 7/17/2017.

The below changes were made to Form I-9 and its instructions:

Changes to Form I-9 Instructions:

  • USCIS changed references to the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section; and
  • USCIS removed “the end of” from the phrase “the first day of employment.”

Changes to List of Acceptable Documents on Form I-9:

  • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document.
  • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • USCIS renumbered all List C documents except the Social Security card.[2]

Current employees are not required to complete the new Form I-9. The new Form I-9 is intended for new employees, reverification of employment authorization, and employees who were rehired after three (3) years from the date the original Form I-9 was executed.

It is important to note that Section 1 of Form I-9 must be completed by the employee. Employees must enter in “N/A” for all fields that are not applicable, and should refrain from using white-out to correct mistakes. Employers must retain executed copies of Form I-9 for three (3) years after the date of hire or one (1) year after the date the employment ended (whichever is later). Employers may be fined if Form I-9 is not properly completed and retained.

The updated Form I-9 and detailed instructions can be found at the following: https://www.uscis.gov/i-9. If you have any concerns about completing a Form I-9, or would like an audit of your current I-9 files, please contact our office at (617) 600-7195, or at Crystal@Raminenilaw.com.

 

[1] Ms. Crystal Conway is the Managing Paralegal of the I-140/AOS Department at Ramineni Law Associates, LLC. She has been with Ramineni Law Associates, LLC since September 2012. Please note that Ms. Conway is not a licensed attorney.

[2] AILA Doc. No. 17080131

CAP-GAP Extensions in F-1/OPT Status, and Project Termination, While H-1B CAP Petition Pending

Michelle Shepard, Esq. [1]

On March 3, 2017, USCIS announced they would suspend the H-1B premium processing service relied on heavily during each FY quota. This suspension raised many complications for I.T. Consulting companies and F-1 Students who rely on CAP-GAP.  USCIS has not set a date for a return of the service as it relates to CAP-Subject H-1B Petitions.

Cap-Gap Extensions:

The regulations provide that:

            Where the F-1 timely files a C/S to H-1B and the H-1B cap has been reached, F-1 status and employment authorization (if in OPT) is automatically extended until Sept. 30th of the following fiscal year, thus eliminating the “gap” between the time the F-1 would have expired and the Oct. 1 H-1B start date. 8 C.F.R. 214.2(f)(5)(vi)(A).

Importantly, from a procedural standpoint, in general the student must contact their DSO, present a copy of their H-1B receipt notice, and will be issued a CAP-GAP I-20 showing an extension of their status.  Failure to obtain this extended I-20 may result in a status violation, despite “automatic extension.” Id.  A number of instances can arise complicating CAP-GAP extensions, such as denial, or failure to have an approved petition by Sept. 30th.

USCIS denies, revokes, or rejects the petition on or before Sept. 30th:  The F-1 student will have the standard sixty-day (60) grace period to depart the U.S. If a petition was denied for fraud or misrepresentation, the student must depart immediately and will not be afforded a grace period.

Petition remains pending on Sept. 30th:  The suspension of premium processing in March 2017 will likely lead to thousands of petitions without a decision on Sept. 30th. In general, if the H-1B petition is not approved by October 1st, F-1/OPT extension will be extended, but will not include work authorization.  Accordingly, a student may remain in the U.S. and await adjudication, but will have no authorization to work. This is likely to be the scenario for many F-1 students on Sept. 30th who have a pending, but unapproved H-1B petitions by Oct. 1.  If this is the case, the student should immediately contact their DSO.

Project Changes While CAP H-1B Pending:

Given the fast paced nature of the I.T. industry and each individual project, often times a project may end before adjudication of the RFE. This more often than not leads to a denial in the H-1B CAP petition.  However, success is highly dependent on a number of factors including the new location of the project, job responsibilities, etc.

If you, or your employer, have been issued a RFE or would like a consultation regarding status during the pending CAP petition, please contact our office at: MShepard@RamineniLaw.com, or (617) 500-9981.

[1] Michelle Shepard, Esq. is the Non-immigrant Visa Department Managing Attorney at Ramineni Law Associates, LLC.  She can be reached at (617) 500-9983 or mshepard@raminenilaw.com.   She has been with Ramineni Law Associates, LLC since 2010, and Managing the NIV Dept. since the Fall of 2012. She is a licensed to practice in the State of Massachusetts, and a 2012 graduate of New England Law | Boston.

USCIS DELAYS IMPLEMENTATION OF THE INTERNATIONAL ENTREPRENEUR RULE

By Paul Reifler Messenger, Esq.[1]

On July 11, 2017, the Department of Homeland Security (DHS) announced that it was delaying the effective date of the International Entrepreneur Rule (IER) from July 17, 2017 until March 14, 2018.  DHS has increased the period in which stakeholders could comment on the rule after the final rule was published on January 17, 2017.  The IER was conceived as a status in which an Entrepreneur who has invested at least $250,000 in a U.S. Business would be admitted as a parolee to grow the business.  The criteria are as follows:

  • The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation;
  • The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business;
  • The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
  • Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
  • Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
  • Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. [2]

The IER could have been a valuable opportunity for International Entrepreneurs who had no other opportunity to work in the U.S. to grow their investment.  For example, Indian nationals cannot apply for an E-2 visa, and the IER could have been used by Indian Nationals to grow U.S. businesses that would in turn create jobs.

DHS has asserted that they are delaying implementation of the rule so that it can be considered in light of President Trump’s Executive Order 13767.  Not only is this a setback to potential growth in the U.S. economy, but the delay also violates the Administrative Procedure Act (APA).  The APA requires that delaying a rule to take effect only occur if it is “impracticable, unnecessary, or contrary to the Public Interest.”[3]  DHS has asserted that the IER is contrary to the Public Interest because DHS would incur expenditures that would not be recouped from filing fees and that implementation of the rule would confuse the public and waste the resources of multiple stakeholders.[4]  These reasons seem illogical as stakeholders have had 180 days since the final rule was published on January 17, 2017.  In their own announcement of the rule, USCIS estimated that 2,940 entrepreneurs would be eligible annually for this status.  It is confusing to understand why DHS now wants to preclude those investors from assisting to grow the U.S. economy.  As of now, DHS still plans to move forward with the IER, and we will continue to monitor events and provide updates on any changes.  If you have any questions about how the IER works and if you believe you are eligible once implemented, please contact our office at (617) 500-9981, or at Paul@Raminenilaw.com.

 

[1] Paul Reifler Messenger, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He can be reached at 617-500-9978 or at Paul@raminenilaw.com.  He has been with Ramineni Law Associates since November of 2016.  He is licensed to practice in Massachusetts and is a 2010 graduate of Hofstra University School of Law.

[2] 82 Fed. Reg. at 31887.

[3] 7 USC §553(b)(B).

[4] 82 Fed. Reg. at 31888.

Trump Administration introduced new hurdle in the pathway to permanent residency: requiring in-person interviews for employment-based adjustment applications

By Dayna Lally[i]

On August 28, 2017, USCIS announced that, effective October 1, 2017, it will expand the existing in-person interview requirement for adjustment of status applications to include applications based on employment and refugee/asylee relative petitions for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant (Form I-730).[ii]

The interview mandate stems from President Trump’s Executive Order 13780 (“travel ban”), that called for heightened security of visa applicants, and is part of USCIS’ comprehensive strategy to improve the detection and prevention of fraud in our immigration system.[iii]

“This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system,” said Acting USCIS Director James W. McCament.[iv] “USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.”[v]

Conducting in-person interviews will allow USCIS officers to verify the information provided in an individual’s application, discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.[vi] The added workload of the interview process will likely cause an increase in the processing times of employment-based green card applications.

In addition to employment-based adjustment applicants, USCIS is planning an incremental expansion of interviews to other benefit types, potentially from one nonimmigrant category to another, i.e., F-1 to H-1B.[vii] Ramineni Law Associates, LLC is closely monitoring this situation and will provide updates as they become available.

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com.  Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan.

[ii] https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

USCIS clarifies, Organizations Affiliated to Institutions of Higher Education qualify for Cap Exempt Status

By Grant Dunn, Esq.[1]

Securing H-1B petition approval can be no easy task. Even getting a petition in front of USCIS for review is a roll of the dice for many petitioners. The cap is quickly filled each filing season and many petitions are left out in the cold.  Employers must then wait for the next season and begin the process all over again. Failure to secure a place in the cap can be a significant detriment to businesses who rely on highly specialized employees. However, for certain institutions, there is a workaround: cap-exempt H-1B petitions. Cap-exempt petitions may be filed at any time during the fiscal year and are not subject to any numerical limitation. How can an institution qualify for this magic wand for USCIS review of an H-1B petition?

Three primary categories of institutions qualify for cap-exempt H-1B filings:

  • Institutions of higher education;
  • Non-profit or governmental research organizations; and
  • Non-profit organizations affiliated with or related to an institution of higher education.

Institutions of higher education are defined by the Higher Education Act of 1965 and USCIS provides clear definitions for qualification as a governmental or non-profit research organization.[2] The law is less clear for non-profit organizations that may be considered affiliated or related to institutions of higher education. USCIS allows non-profit petitioners to apply for cap-exempt H-1B via affiliation or relation if they satisfy any of the following four (4) criteria:

  • Shared ownership or control by the same board or federation as an institution of higher education;
  • Operation by an institution of higher education;
  • Attachment as a member, branch, cooperative, or subsidiary;
  • Entry into a formal written affiliation agreement with an institution of higher education.[3]

In an effort to clarify the determination of cap-exempt status, effective January 17, 2017, USCIS implemented a final rule that expanded the affiliation standard to include the fourth category of affiliation evidence listed above: the formal affiliation agreement.[4] With such an agreement in place, an employer is no longer required to demonstrate shared ownership or control, operation, or direct membership. If a non-profit business has an affiliation agreement that establishes an active working relationship between the business and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education, the non-profit may file cap-exempt H-1B petitions.

Unfortunately, by the same final rule, USCIS eliminated its policy of deference to prior determination of exempt status.[5] Petitioners who have been approved as affiliated in the past should no longer rely on USCIS recognizing cap-exemption based on documentation of prior petition approvals. Our office recommends that organizations that have been approved by USCIS as affiliates of academic institutions in the past should be prepared to respond to RFEs on this point. Our office recommends Petitioners update affiliation agreements or put one in place. Be prepared to also demonstrate the aspects of the organization’s mission that supports the objectives of the institution of higher education.

If you need assistance preparing a response to a USCIS inquiry on proof of cap-exempt status or have questions about how your company may qualify for cap-exempt H-1B filing, please contact our office for a consultation. We can be reached at (617) 500-9981 or Grant@raminenilaw.com.

[1] Grant Dunn, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC. He has been with Ramineni Law Associates since 2017. He is licensed to practice law in the Commonwealth of Massachusetts and he graduated from Suffolk University Law School in 2014. He can be reached at 617-500-9978 or at Grant@raminenilaw.com.

[2] See 8 CFR 214.2(h)(19)(iii)(C)

[3] See 8 CFR 214.2(h)(8)(ii)(F)(2)

[4] See https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled

[5] Id.

J-1 Waiver delayed? DOS is accepting Inquiries.

By Dayna Lally[i]

DOS Waiver Review Division (“WRD”) is accepting inquiries from AILA members to resolve pending J-1 waiver cases that exceed the estimated processing times listed on the DOS website.[ii] Ramineni Law Associates, LLC has several AILA members who can direct delayed J-1 waiver inquiries to the attention of the Department of State.[iii]

The J nonimmigrant visa category is for individuals approved to participate in work and study-based exchange visitor programs.[iv] J-1 classification is for those coming to the U.S. to receive graduate medical education or training, or to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.[v]

Certain J-1 exchange visitors are subject to a two-year home-country physical presence requirement, i.e. “foreign residence requirement,” under section 212(e) of the Immigration and Nationality Act. The foreign residence requirement applies to J-1 exchange visitors if any of the following conditions exist:

  1. Government funded exchange program – The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence;
  2. Graduate medical education or training – The exchange visitor entered the United States to receive graduate medical education or training; or
  3. Specialized knowledge or skill: Skills List – The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skill List.[vi]

A J-1 exchange visitor subject to the foreign residence requirement must return to their home country for a cumulative total period of at least two years before changing status (such as to the H-1B, L-1A, etc.), applying for an immigrant visa, or adjusting status to that of a lawful permanent resident (“LPR”).[vii]

If a J-1 exchange visitor is unable or unwilling to comply with the foreign residence requirement, they may apply to the DOS WRD for a recommendation that United States Citizen and Immigration Services (“USCIS”) grant a waiver of said requirement. Processing times for J-1 waiver recommendations vary depending on the basis of the waiver requested.[viii]

There are five bases for a J-1 waiver. Please see below the estimated processing times as listed on the DOS website:

No Objection Statement 6 to 8 weeks
Interested U.S. Federal Government Agency 4 to 8 weeks
Persecution 3 to 4 months
Exceptional Hardship 3 to 4 months
State Public Health Department (Conrad State 30 Program) 4 to 6 weeks

 
If you are currently in the United States on a J-1 visa subject to the foreign residence requirement and your case exceeds the estimated processing times listed on the DOS website, please contact our office at 617-600-7201 or by email to dayna@raminenilaw.com.

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com.  Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan.

[ii] AILA Doc. No. 12110865 (July 7, 2017)

[iii] http://www.vkblaw.com/news/sixhundred.htm

[iv] https://j1visa.state.gov/basics

[v] https://www.uscis.gov/working-united-states/students-and-exchange-visitors/exchange-visitors

[vi] https://travel.state.gov/content/visas/en/study-exchange/exchange.html

[vii] Id.

[viii] https://travel.state.gov/content/visas/en/study-exchange/student/residency-waiver/ds-3035-instructions.html

AP Denials Due to International Travel

By Dayna Lally[i]

USCIS recently began denying Form I-131 advance parole applications for abandonment in instances where applicants left the United States while Form I-131 was pending with USCIS.[ii]

In its recent denial notifications, USCIS points to page 6 of the Form I-131 instructions which state, “[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”[iii]

This is a significant deviation from USCIS’ prior policy of approving advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.[iv] The American Immigration Lawyer Association (“AILA”) has contacted USCIS Service Center Operations Directorate (“SCOPS”) to determine whether this change in policy was intentional.[v] SCOPS responded that the denials were proper and that traveling internationally while an application for advance parole is pending will result in the denial of that application notwithstanding prior practice to the contrary.[vi]

If your Form I-131 advance parole application was recently denied for traveling abroad, please contact our office at 617-600-7201 or dayna@raminenilaw.com.

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC. Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan. Ms. Lally can be reached at 617-600-7201 or dayna@raminenilaw.com.

[ii] See AILA Doc. No. 17081867 (August 18, 2017)

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

President Trump Endorses The Reforming American Immigration for a Strong Economy (RAISE) Act

By: Crystal Conway[1]

On August 2, 2017, President Trump endorsed a new bill, The Reforming American Immigration for a Strong Economy (RAISE) Act.[2] The RAISE Act is in line with President Trump’s previously stated agenda to protect American Workers.  The RAISE Act is set to overhaul the immigration process, specifically regarding the Permanent Residency or green card. The current employment-based Permanent Residency system is broken down into categories based off of their skill set (EB-1, EB-2, EB-3, etc.). The proposed RAISE Act will change the Permanent Residency into a merit based point system. The merit based point system is currently being used in many other countries such as Canada and Australia.[3] To be qualified under the merit based system, Applicants would need reach at least 30 points based upon the below topics: Age, Education, English Language Proficiency, Extraordinary Achievement, Job Offer, and Investment in and Active Management of a New Commercial Enterprise (NCE). The points would have to be earned as of the date the application was placed into the Eligible Applicant Pool.

Age: Determined as of the date the application was placed in the Eligible Applicant Pool:

  • 0 – 17: May not submit an application
  • 18 – 21: 6 points
  • 22 – 25: 8 points
  • 26 – 30: 10 points
  • 31 – 35: 8 points
  • 36 – 40: 6 points
  • 41 – 45: 4 points
  • 46 – 50: 2 points
  • 51+: 0

Education: These points would be accrued only for the highest degree obtained as of the date the was placed in the Eligible Applicant Pool.

  • S. or Foreign High School Degree: 1 point
  • Foreign Bachelor’s Degree: 5 points
  • S. Bachelor’s Degree: 6 points
  • Foreign STEM Master’s Degree: 7 points
  • S. STEM Master’s Degree: 8 points
  • Foreign Professional Degree or Doctoral STEM: 10 points
  • S. Professional Degree or Doctoral STEM: 13 points

English Language Proficiency: Applicants would be granted points for this category based off of the highest test ranking.

  • 1st – 5th Deciles: 0 points
  • 6th and 7th Deciles: 6 points
  • 8th Decile: 10 points 6
  • 9th Decile: 11 points
  • 10th Decile: 12 points

Extraordinary Achievement: Points can be accrued for the following:

  • Nobel Laureate or comparable recognition in a scientific or social scientific study = 25 points.
  • Individual Olympic medal or first place in an international sporting event in which the majority of the best athletes in an Olympic sport were represented, within 8 years prior to submitting application = 15 points.

Job Offer: Points for “highly compensated employment” can be accrued for the following:

  • Annual salary offered is 150% but less than 200% of the median household income in the state of employment = 5 points.
  • Annual salary offered is 200% but less than 300% of the median household income in the state of employment = 8 points.
  • Annual salary offered is at least 300% of the median household income in the state of employment = 13 points.

Investment in and Active Management of a New Commercial Enterprise (NCE): Points for investments can be accrued for the following:

  • Investment of $1.35 million in a U.S. NCE, maintain the investment for 3 years and play active role in managing the NCE as their primary occupation = 6 points.
  • Investment of $1.8 million in a U.S. NCE, maintain the investment for 3 years and play active role in managing the NCE as their primary occupation = 12 points[4]

It is important to note; an Applicant may not be placed in the Eligible Pool if they have a bachelor’s degree or less and does not earn any points for “highly compensated employment.” The application would be submitted online with a fee is $160 to be placed in the visa pool. There would be a total of 140,000 Green Cards available per year.

The RAISE Act also looks to reduce family Permanent Residency Applications. The preference categories for extended family members and adult children would be eliminated.[5] These are the categories: F1, F2A-B, F3, and F4. The RAISE Act would Amend INA §203(a) “to recognize only spouses and minor children of LPRs as eligible for family-based sponsorship, outside of immediate relatives.”[6] Children under the age of 21 and spouses of United States Citizens and Permanent Residences would remain untouched and giving priority. Temporary visas would be available for elderly parents requiring care from their United States Citizen Children. This would be done by creating a new non-immigrant category (W) for parents of U.S. citizens who are at least 21 years old.

Lastly, the RAISE Act would eliminate the Diversity Visa lottery system and would also put a limit of Permanent Resident Status for refugees to 50,000 a year.

It is important to note that the RAISE Act has not been signed into law, it is proposed legislation. At RLA, we are continuing to monitor not only the RAISE Act but any future proposed immigration legislation. We will continue to provide updates as they become available.

[1] Ms. Crystal Conway is the Managing Paralegal of the I-140/AOS Department at Ramineni Law Associates, LLC. She has been with Ramineni Law Associates, LLC since September 2012. Please note that Ms. Conway is not a licensed attorney.

[2] https://www.congress.gov/bill/115th-congress/senate-bill/354/text                                                            

[3] https://www.whitehouse.gov/the-press-office/2017/08/02/president-donald-j-trump-backs-raise-act

[4] AILA Doc. No. 17080732

[5] https://www.whitehouse.gov/the-press-office/2017/08/02/president-donald-j-trump-backs-raise-act

[6] AILA Doc. No. 17080732

Level 1 Prevailing Wage Request for Evidence for Computer Programmers

By Taimoor Choudhry[1]

Just recently, the USCIS has begun issuing what we label “Level I Specialty Occupation Request for Evidence” (“RFE”) for petitions that were filed under Wage Level I. These RFEs are issued pursuant to the March 31, 2017 USCIS Policy Memorandum which held that an entry-level computer programmer position would not generally quality as a position in a specialty occupation. “Instead, a petitioner must provide other evidence to establish [emphasis added] 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 a 8 CFR 214.2(h)(4)(iii).[2] Although the March policy memorandum specifically targeted the occupation category of Computer Programmers, the USCIS is issuing these RFEs for other occupational categories filed at Wage Level I, including 15-1121, 19-2041 and 15-2041. The USCIS has also begun issuing Notice of Intent to Revoke (NOIRs) for petitions which were already approved but filed under Wage Level I.

Level I Specialty Occupation RFEs are particularly difficult because they essentially put the Petitioner between a rock and a hard place. The USCIS first requests Petitioner to prove that the Proffered position qualifies as a Specialty Occupation. It argues that the proffered position does not qualify as a specialty occupation because some of the entry-level positions within the occupational category do not normally require a bachelor’s or higher degree. The USCIS then requests Petitioner to prove that the Wage Level I designation corresponds to the proffered position. It argues that the job duties for the proffered position do not correspond to the Level I wage description because they do not encompass a basic understanding of the occupation and appear to contain more than routine tasks that require limited, if any, exercise of judgment.

As a result, the Petitioner is placed in a difficult position of proving that the entry-level position is advanced enough to require a bachelor’s degree, but not advanced enough to make the Wage Level I designation unwarranted. Given the difficulty of the Level I Specialty Occupation RFEs, we advise our clients to not file their H-1B petitions under Wage Level I. For Petitioners who are already in this conundrum, we have crafted a specific response to help Petitioner’s get out of the tight squeeze. If you have received a Level I Specialty Occupation RFE, please contact our office for a consultation.  We can be reached at (617) 500-9981, or Taimoor@raminenilaw.com.

[1] Taimoor J. Choudhry, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He has been with Ramineni Law Associates, LLC since July of 2016. He graduated from Penn State Law and is licensed to practice in the State of New York and Massachusetts. He can be reached at Taimoor@raminenilaw.com or (617) 300-8134

[2]https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf