INSZoom Immigration Conference 2019| Is the H-1B Program Under Attack? | Poorvi Chothani

1. INSZOOM IMMIGRATION
CONFERENCE 2019
November 5-6, 2019 ITC Gardenia, Bengaluru |#INSZoomIIC2019

2. INSZOOM IMMIGRATION
CONFERENCE 2019
Discussion Overview
• Addressing changing trends in specialty
occupations and problematic occupational
categories.
• Current adjudicatory trends on portability
and extensions beyond the six-year limit
for h-1b visa holders.

3. INSZOOM IMMIGRATION
CONFERENCE 2019
Preliminary Considerations For
Documenting Your Case
• Evaluate early to ensure time to gather
documents
• Strategize about approach (kitchen sink vs.
selective documentation)
- Must include all required initial evidence
• Standard of proof is “preponderance of the
evidence”- NOT “clear and convincing”

4. INSZOOM IMMIGRATION
CONFERENCE 2019
Specific Issues
• Specialty occupation definition
• Degree relevance
• Level 1 wages
• Employer-employee relationship
• Post 6 years H-1B portability

5. INSZOOM IMMIGRATION
CONFERENCE 2019
The Law Hasn’t Changed – But Yet
Things Seem Different!
• Rescission of prior guidance on H-1B petitions for
computer-related positions in March 2017
• Buy American And Hire American (BAHA) Executive
Order in April 2017
• Recession of “Deference Memo” in October 2017
• New “contract” and “itinerary” requirements for H-1Bs
at the third-party worksites in February 2018
• Memo - USCIS power to deny without an RFE or
NOID if the requirements for initial evidence under
the regulations have not been met in July 2018

6. INSZOOM IMMIGRATION
CONFERENCE 2019
Specialty Occupation Definition
An occupation which requires theoretical and practical
application of a body of highly specialized knowledge in
the 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 entry into the occupation in
the United States
8CFR & 214.2(h)(4)(ii)

7. INSZOOM IMMIGRATION
CONFERENCE 2019
Proving: Specialty Occupation
• A bachelor's degree requirement is an industry
norm among similar organizations; or the
specific position is so unique or complex that it
requires a Bachelor’s degree;
• Employer normally require a Bachelor’s degree
or equivalent for the position; or
• The nature of the specific duties are so
specialized and complex that the knowledge
require to perform them is normally associated
with a Bachelor’s degree

8. INSZOOM IMMIGRATION
CONFERENCE 2019
Documenting Specialty Occupation
• Use OOH to your advantage – by citing to “Summary”,
“What they do”, and “How to become” pages(if helpful) or
offer alternative sources
• O*Net summary reports no longer credited for proving
specialty occupation (UCUS dismisses Job Zane
designation), but CAN be used to prove that a certain SOC
code is appropriate, especially for “Occupations, all other”
• Tie the beneficiary's specific coursework and degree to the
duties
• Submit organizational chart/employee matrix showing
comparable employees educational level and field of study
• Submit job posting/ads of employer or industry for the
position
- Caveat: Watch out for postings with broad ranges of
acceptable fields of study (USCIS will say NOT specialized!)

9. INSZOOM IMMIGRATION
CONFERENCE 2019
Documenting Degree Relevancy
• Degree must be a US (i.e. 4-year) “bachelor’s or
higher” in a/the “specific specialty, or its
equivalent”
• Credentials evaluations
• Be cautious in…
- Describing educational requirements for the
position
- Review requirements listed in the job posting/ads
• Nexus between degrees and duties

10. INSZOOM IMMIGRATION
CONFERENCE 2019
Documenting Employer/Employee
Relationship
• 2010 Neufeld Memo (AILA Doc. No. 1011363)
- Itinerary of beneficiary's services with dates and locations
- Petitioner contracts, SOWs, service agreements and work orders
with end clients establishing petitioners right to continuing right to
control beneficiary's work
- Petitioner-Beneficiary Employment Agreement outlining tools
provided to beneficiary be petitioner to do the work (e.g. laptop)
- Detailed job description, performance reviews, employee
handbook excerpts
- End client letters (with sufficient detail)
• 2018 Contracts And Itineraries Memo (AILA Doc. No.
10822362)
- specific and non-speculative qualifying assignments and
itineraries for duration

11. INSZOOM IMMIGRATION
CONFERENCE 2019
Level 1 Definition Under DOL’s 2009
PW Guidance
• Level 1 (entry) wage rates are assigned to job offers for
beginning level employees who have only a basic
understanding of the occupation.
• These employees perform routine tasks that require limited, if
any, exercise of judgment .
• The tasks provide experience and familiarization with the
employer’s methods, practices and programs.
• The employee may perform higher level work for training and
developmental purposes.
• These employees work under close supervision and receive
specific instruction on required tasks and results expected.
• Their work is closely monitored and reviewed for accuracy.
Statements that the job offer is for a research fellow, a worker
in training, or an internship are indicators that a level 1 wage
should be considered.

12. INSZOOM IMMIGRATION
CONFERENCE 2019
Documenting Level 1 Wage
• Prevailing wage determination from DOL- if time
• DOL wage worksheet from 2009 DOL PW
guidance
• Organizational chart showing beneficiary's
subordinate entry-level role within the
organization
• Detailed job description that includes the name
of the supervisor and shows the beneficiary
performing entry-level duties under supervision1
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13. INSZOOM IMMIGRATION
CONFERENCE 2019
Occupations Under attack
• Business Occupations: Market Research Analyst,
Financial Analyst, Management Analyst, Logistician,
General Manager, Operations Manager, etc.
• IT occupations: Computer programmer, Computer system
analyst, Web developer, Software developer.
• Also: “Computer Occupations, All Other”(SOC Code 15-
1199) Positions, Including Software Quality Assurance
Engineer, Computer Systems Engineer/Architect, Business
Intelligence Analyst, And Information Technology Project
Manager.

14. INSZOOM IMMIGRATION
CONFERENCE 2019
USCIS' Ammunition
• Selective reading of OOH requirements
indicating an occupation does not require a
bachelor’s degree in a specific specialty.
• There is no OOH entry for the occupation
(usually with computer occupations, all other
classifications).
• LCA does not support the position (duties do
not match occupational classification or
prevailing wage level does not correspond to
position).

15. INSZOOM IMMIGRATION
CONFERENCE 2019
Portability And Extension Beyond
Six Year Limit
• H-1B Portability
- The new H-1B petition must have been filed while the
foreign worker is in H-1B status or is in a period of authorized
stay based on a timely filed H-1B extension petition.
-Employers may file successive H-1B portability petitions (i.e.,
“bridge petitions”) on behalf of H-1B workers
• USCIS will deny bridge petition if a request for an extension
of a stay was denied in a prior H-1B portability petition and
the foreign workers Form I-94 has expired.
• Bridge petitions may provide employment authorization as
long as each such petition separately meets the
requirements for H-1B classification and for an extension of
stay 1
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16. INSZOOM IMMIGRATION
CONFERENCE 2019
H-1B Extension Beyond Six Year
Limit
• 1- year H-1B extension beyond the 6-year limit after 365 days
elapse after filing labor certification application or employment-
based immigrant visa petition
• H-1B extensions are available until the labor certification
expires, a final decision is made to deny the labor certification
or immigrant visa petition to revoke an approved labor
certification or immigrant visa petition , to grant or deny
permanent resident status. Or otherwise to close an application
for labor certification or immigrant visa petition or application to
adjust status
• A decision to deny or revoke a labor certification or immigrant
visa petition is not final until administrative appeals have been
exhausted
• The beneficiary of H-1B extension must be named beneficiary
on the labor certification unless he or she was substituted for
another foreign national in the labor certification on or before
July 16, 2007
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17. INSZOOM IMMIGRATION
CONFERENCE 2019
H-1B Extension Beyond Six Year Limit
(contd.)
• A post six-year H-1B extension may be filed before 365 days have
elapsed from filing date of a labor certification or an immigrant visa
petition has been filed, as long the labor certification or an immigrant
visa petition is filed at least 365 days before the date when requested
post six-year H-1B extension will take effect
• The foreign national may request time remaining within the six-year
limit, including recapture time, while simultaneously requesting an
additional one-year extension
• The H-1B petitioner does not have to be the same employer that
filed the labor certification or an immigrant visa petition
• The qualifying labor certification or an immigrant visa petition does not
have to be the same one used for the initial H-1B extension beyond the
six-year limit; however, one cannot aggregate the number of days
multiple labor certification or an immigrant visa petition have been
pending to meet 365-day requirement

18. INSZOOM IMMIGRATION
CONFERENCE 2019
H-1B Extensions Beyond The Six
Year Limit (Contd.)
• Only the principal beneficiary of the labor certification or
immigrant visa petition is eligible for an H-1B visa
extension
• (Spouses in H-1B status cannot piggyback.)​
• Eligibility for adjustment ceases if the foreign national
fails to file for adjustment of status or an immigrant visa
within one year of an immigrant visa becoming available.
- The foreign national may be excused if the failure to file
was beyond his or her control.
- If the foreign national’s priority date retrogresses during
the one-year period, a new one-year period will begin when
an immigrant visa again becomes available.

19. INSZOOM IMMIGRATION
CONFERENCE 2019
Extension Beyond Six Year Limit​
• Section 104 of AC21 allows for 3-year H-1B extensions
beyond the 6-year limit for beneficiaries of approved
immigrant visa petitions under the first, second, and third
employment-based preference categories when their
priority dates are not current.
• USCIS had unintentionally departed from the existing
policy by requiring an individual seeking an H-1B visa
extension to show immigrant visa unavailability both at
the time of filing and at the time of adjudication of the H-
1B extension.
• As DHS confirmed in its final rule, consistent with
longstanding policy DHS will require proof of immigrant
visa unavailability only at the H-1B extension filing date.
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20. INSZOOM IMMIGRATION
CONFERENCE 2019
Extension Beyond Six Year Limit​
(Cont.)​
• H-1B extension may be granted till a final decision is Amade
to revoke an approved immigrant visa, approve or deny any
immigrant visa application, or approve or deny any
adjustment status application.
• The beneficiary need not currently possess H-1B status to
qualify for a 3-year H-1B extension beyond 6-year limit.
• The H-1B petitioner need not be the petitioning employer in
the immigrant visa petition.
• Only the principal beneficiary of the approved immigrant visa
petition is eligible to extend H-1b status under section 104
AC21. (Spouses in H-1B status cannot piggyback.)​

21. INSZOOM IMMIGRATION
CONFERENCE 2019
H-1B Policy, Regulatory,
Legislative Updates
Spring regulatory agenda released:
• H-1B eligibility and wage protection: DHS plans to
propose a rule that would revise the definition of
specialty occupation, as well as the definition of
employment and an employer-employee relationship.
The rule will also propose additional requirements
designed to ensure employers pay appropriate wages
to H-1B visa holders
• H-1B registration fee: DHS will propose to charge a
fee for H-1B regulations that will be required under
the new regulations for FY 2021 petitions
• Unknown potential use- Adjustment of status change.
DHS plans to propose changes to procedures for
adjustment of status filing2
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22. INSZOOM IMMIGRATION
CONFERENCE 2019
Avoiding And Addressing RFEs
• Address regulatory criteria in petition support letter
o Provide documentary evidence and explain relevance
• Use O*Net an OOH to explain or defend the position and
degree requirement
o Explain relevance of degree to position
o Review Residential Finance case; degree in one specific
field is not required (AILA Doc. No. 12031265)
• Explain petitioners “right to control”
• Provide documentation to support third-party assignment
(duration, location, duties, etc.)
• Finally – document with an eye on future litigation

23. INSZOOM IMMIGRATION
CONFERENCE 2019
Questions & Answers
Thank You!