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Category: H-1B

H-1B Win for Computer Programmer Occupation

Posted December 18, 2020Cheryl Kilborn - Sr. AssociateH-1B

A federal court of appeals recently reversed and remanded a California federal court ruling that upheld USCIS’s denial of an H-1B visa for a computer programmer.

Background

One of the four alternative regulatory criteria to establish that an occupation qualifies for H-1B classification is to demonstrate that a bachelor’s degree (or its equivalent) is “normally” the minimum requirement. USCIS looks to the Occupational Outlook Handbook (OOH), a source it deems authoritative, when determining whether an occupation “normally” requires a bachelor’s degree.

The current version of the OOH states the following regarding the normal educational requirements for a computer programmer:

“Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.”

USCIS routinely relies on the above language to deny H-1B visa requests for computer programmers. USCIS asserts that because a bachelor’s degree is not required 100 percent of the time, that it is therefore not the “normal” requirement. USCIS’s position on this was codified in a March 2017 Policy Memorandum in which it asserted that because an associate’s degree is acceptable, per the OOH, an employer cannot rely on the OOH to demonstrate that its particular computer programmer position meets the criteria for H-1B classification.

Notably, The OOH also states the following regarding the normal educational requirements for a computer programmer:

Typical Entry-Level Education

Bachelor's degree

While USCIS has routinely denied H-1B requests for computer programmers upon finding that “most” is not synonymous with “normally” the court in this case addressed USCIS’s failure to consider the OOH entry that a bachelor’s degree is the “typical” requirement for the computer programmer occupation.

Court’s Analysis

  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, a bachelor’s degree is not the “normal” requirement (USCIS failed to address the OOH entry that a bachelor’s degree is the “typical” requirement). The court considered the OOH entry and found the words “normally” and “typically” to be synonymous.
  • USCIS argued that because some employers hire computer programmers with associate’s degrees, per the OOH, that most computer programmers have either a bachelor’s or associate’s degree. The court disagreed finding that USCIS’s logical fallacy misrepresented the OOH.
  • The court also found that USCIS’s failure to consider key evidence within the OOH itself that explained that a bachelor’s degree is the “typical” requirement was “yet another (and independent) reason” why the lower court’s decision was arbitrary and capricious.

What this means for H-1B employers

  • We expect USCIS’s March 2017 Policy Memorandum to be rescinded, in which USCIS asserts that an employer cannot rely on the OOH to demonstrate that a computer programmer is an occupation that “normally” requires a bachelor’s degree.
  • The computer programmer occupation is not the only one for which the OOH states that in some instances employers will accept something less than a bachelor’s degree. The reasoning in this case can be used for other occupations as well.
  • Employers that have the option of suing USCIS in the 9th circuit can benefit from this binding precedent. This case, while not controlling outside of the 9th circuit, is certainly persuasive for other jurisdictions.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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Department of Labor Announces Timeline for Updated Wage Data

Posted December 7, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

The Department of Labor has issued a timeline to implement previously available wage data. In light of the District Court decision setting aside the regulation that took effect on October  7th, the DOL will implement wage data according the rules historically applicable.

  • Employers may file Labor Condition Applications (LCAs) after 8:30AM on Wednesday, December 9, 2020 using the wage data in place prior to October 7th.
  • LCAs using other wage sources can be filed after 8:30AM on Friday, December 4, 2020.
  • Employers can continue to file prevailing wage requests.
  • DOL has paused the processing of prevailing wage requests until 8:30AM on December 15, 2020.
  • For those prevailing wage determinations issued using the higher wage data, employers may seek a redetermination between now and January 4, 2021, despite the usual 30-day deadline.

Please reach out to your designated Meltzer Hellrung attorney, or consultation@meltzerhellrung.com with any questions. 

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Federal Court Stops New H-1B and Prevailing Wage Rules

Posted December 1, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

On December 1st, the U.S. District Court of the Northern District of California issued a judgement setting aside the H-1B and Prevailing Wage rules that were issued in October. The District Court found that the Administration had violated the Administrative Procedure Act by not demonstrating that there was good cause to issue the regulations without following the normally required notice and comment requirements. Due to this violation, the regulations have been overturned.

What does this mean?

H-1B Rule

The H-1B rule was expected to go into effect December 7th.  With this District Court decision, this rule will no longer be taking effect next week.  This rule would have had a substantial impact on IT consulting companies, as off-site H-1B approvals would have been limited to a single year of validity. With the judgment, H-1B regulations and requirements will remain the same, without change.

Prevailing Wage Rule

As the District Court found that there was no reason to delay the issuance of the summary judgment, we expect the prevailing wage data to return to the levels that were in place prior to October 7 relatively quickly.

Skill Level

Previous Percentile

New Percentile on Oct. 7th

Level 1 (entry level)

17

45

Level 2 (qualified)

34

62

Level 3 (experienced)

50

78

Level 4 (fully competent)

67

95

With the return to the previous wage guidelines, employers will have more reliable wage data available from DOL. Under the new rules the DOL presented data in many occupations having a default wage level of $208,000, as well as unreasonable increases in the required prevailing wages.

Labor Condition Applications (LCA) filed prior to the summary junction will continue to be valid, and pending prevailing wage determinations should now be issued with the pre-October 7 wages.  At this time, it is unclear whether DOL will reissue prevailing wage determinations that were created between October 8 and December 1.

What could happen next?

The Administration will be sure to appeal this decision to the 9th Circuit. An appellate court could temporarily pause the implementation of this decision or even overturn the decision.

Meltzer Hellrung will continue to monitor this matter and provide updates as available.  Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Proposed Change to Replace the H-1B Cap Lottery with a Wage-Based Selection Process

Posted November 3, 2020Cynthia S. Coulange - Sr. AssociateH-1B

The Department of Homeland Security has submitted a proposed rule to change the process which governs the way H-1B visas that are subject to the annual cap are selected. Each fiscal year there are 65,000 H-1B visas available for individuals who possess at least a bachelor’s degree (or its equivalent), and an additional 20,000 for those who have a U.S. master’s degree.   Currently, USCIS conducts a random lottery of the hundreds of thousands of cap-subject H-1B applicants each year for these available visas.

Proposed Changes:

  • Under the proposed rule, USCIS would select petitions using a wage-level-based process instead of the current lottery process. Petitions with higher wage levels will be prioritized over petitions which utilize lower wage levels.
  • Under this system petitioners are expected to potentially have the ability to improve their chance of being selected by agreeing to pay H-1B beneficiaries higher wages.

Expectations:

The administration argues that this proposed rule will further the Trump administration’s goal of prioritizing H-1B visa for employers who employ higher skilled and higher paid workers. The Department of Homeland Security will open a public comment period once the notice of proposed rulemaking is published with the Federal Register. Interested parties will have a 30-day period to submit comments regarding the proposed rule. Subsequently, interested parties will have an additional 60 days to comment on the proposed information collection before the rule is finalized. DHS will subsequently review the comments, consider them carefully, and draft responses before issuing the final rule.

Like other recent immigration proposals, this one is prone to challenge, particularly since DHS itself admitted in its 2019 preregistration regulation the following: "DHS believes, however, that prioritization of selection on other factors such as salary, would require statutory changes.” The NPRM is scheduled to be published in the Federal Register on November 2, 2020 and comments are due 30 days later.

Meltzer Hellrung will continue to monitor the proposed rule change and provide updates as available. If you have any questions or concerns on how the above may impact your foreign national employees, please contact your designated Meltzer Hellrung attorney or consulation@meltzerhellrung.com.

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New Regulation to Increase Prevailing Wages for PERM, H-1B, H-1B1 and E-3

Posted October 7, 2020Articles, Green Card, H-1B

The regulation to increase the prevailing wages for PERM, H-1B, H-1B1 and E-3 petitions will be published in the Federal Register on October 8 and will take effect immediately. The regulation has been issued as an interim final rule using the current global pandemic’s impact on the economy as the reason for fast-tracking the rule-making process.  We do anticipate that there will litigation challenging the regulations.

It is important to note that these new regulations will only affect applications filed after the effective date. 

New Calculations for Prevailing Wages

The Department of Labor (DOL) calculates the average wage paid to similarly employed workers in occupations within a geographic area of employment from data gathered by the Bureau of Labor Statistics.  This data is divided into 4 wage levels:

  • Level 1 – entry level
  • Level 2 – qualified
  • Level 3 – experienced
  • Level 4 – fully competent

The new rule will increase the prevailing wage minimums for each of the wage levels. Currently, Level 1 is calculated at 17th percentile and Level 4 at the 67th percentile.  These will increase to the 45th percentile for Level 1 and the 95th percentile for Level 4.

Who is Affected

  • Labor Condition Applications (LCAs) filed with the DOL on or after October 8, 2020 will use the new wage structure. LCAs filed prior to October 8, 2020 will use the previous wage structure.
  • Prevailing Wage Determinations (PWDs), typically used for PERM green cards, issued on or after October 8, 2020 will be subject to the new wage structure. Prevailing wage requests submitted prior to October 8, but are still pending, will be subject to the new wage structure. PWDs that have already been issued will remain valid under the previous wage structure.

Next Steps

  • Employers may want to consider accessing alternative wage surveys which may result in wages that are more in line with industry standards. These surveys do typically require additional fees for access.
  • We will closely look at filed prevailing wage requests in light of the new wages once they are released, to see whether any action is required.
  • We have historically recommended filing H-1B petitions with Level 2 wages or above to pre-empt requests for evidence from USCIS whether the position qualifies as entry level or whether entry level positions qualify as specialty occupations. These new wage guidelines will require employers to file petitions at Level 1 wages. We are preparing strategies to confront such requests for evidence in the future.
  • We expect that these new rules will prompt more RFEs going forward.

Meltzer Hellrung will be monitoring this matter and will provide updates as they occur.  Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellurng.com with any questions.

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