The government’s recent focus on the wage levels associated with the H-1B Specialty Occupation visa classification has resulted in companies that rely on foreign talent having to scramble to respond to a new level of government scrutiny. The disruption has been caused by changes in the processing of H-1B Specialty Occupation visa classification. In the past, the wage levels associated with these visas followed a well-settled legal standard that was rarely if ever scrutinized. The government’s sudden shift in raising questions over this matter can impact a foreign worker’s start date, continued work authorization and international travel plans.
The H-1B visa classification is a popular vehicle used by employers of foreign nationals in professional roles, and it is one of the most heavily scrutinized and regulated employment-based nonimmigrant visa classifications. Under the Immigration and Nationality Act, the H-1B visa classification is available for Specialty Occupations – an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a related bachelor’s degree (or its equivalent) in the specialty area as a minimum for entry into the occupation. Typically, employers use the H-1B visa classification to sponsor architects, engineers, scientists, lawyers, business analysts, physicians, accountants, teachers, product managers and other professionals.
The visa classification requires the employer to pay the sponsored foreign beneficiary either the actual wage – that is, the wage paid to similarly situated workers – or the prevailing wage, whichever is higher. The employer must make an attestation to this effect on a Labor Condition Application (LCA) filed with the U.S. Department of Labor (DOL). To determine the prevailing wage, the employer may rely on the DOL’s Occupational Employment Statistics survey, which provides wage data on hundreds of different occupations throughout the United States across four different wage levels (I, II, III and IV), depending on the level of education, experience and level of supervision. The employer must file the H-1B visa petition with the corresponding LCA.
In recent months, the scrutiny of U.S. Citizenship and Immigration Services (USCIS) over the wage levels associated with H-1B visa petitions has taken an alarming turn. Immigration practitioners have noted an unprecedented surge in government requests for additional evidence based on the appropriateness of the wage level and/or whether the LCA corresponds to the Specialty Occupation. Certain inquiries have also questioned whether the sponsored role is a Specialty Occupation in light of the wage level specified in the LCA. This means that H-1B petitions that would have been approved without question in the past may no longer meet the government’s heightened bar.
For example, even if the job duties appear to be sophisticated enough to rise to the level of a Specialty Occupation, in recent months USCIS has questioned whether the role meets the Specialty Occupation bar in light of a wage level I designation in the associated LCA. In other variations of the government inquiry, USCIS has questioned whether a higher-level wage should have been selected, or even whether a certain wage level corresponded to the proposed Specialty Occupation.
This new practice has caused concern among immigration practitioners. The legal criteria have not changed, and USCIS scrutiny over this issue has historically been minimal. For USCIS to raise the level I wage issue as a routine matter is new and disconcerting to many. It appears that no employer or job is immune from these types of inquiries.
Furthermore, USCIS is questioning not only the appropriateness of the wage level but also tying it to a question of whether the role qualifies as a Specialty Occupation. This is completely new. Procedurally, the appropriateness of the wage level should be scrutinized by the DOL, not the USCIS. Moreover, as a substantive matter, it is legally permissible for wage level I roles to still meet the requirements of a Specialty Occupation.
This recent development has caused many employers to push out start dates until the approval has been secured, and this, in turn, has resulted in changes or postponement of international travel for many foreign workers who rely on H-1B visa petition approval. Unfortunately, premium processing, which requires adjudication in 15 days, has been unavailable since April 2017. The continued suspension of premium processing has exacerbated the uncertainty, as there is no mandatory adjudication time schedule.
Some immigration practitioners have suggested that widespread government inquiries on wage levels are tied to the Trump administration’s focus on employers who sponsor temporary workers. Most critically, on March 31, 2017, USCIS issued a memorandum entitled “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions,’” withdrawing its earlier guidance of deference toward Specialty Occupation findings for computer-related positions. The new policy memo instead calls for independent scrutiny to ensure that Specialty Occupation requirements are met. Then, on April 18, 2017, President Trump’s executive order “Buy American and Hire American” instructed government agencies to protect the economic interests of U.S. workers.
Many immigration practitioners believe that heightened levels of scrutiny were inevitable in light of the new administration. Certainly, these policy statements seem to have paved the way for the present upheaval in the H-1B visa petition adjudications.
While some practitioners have proposed workarounds, it is too early to tell what the most effective and efficient means of addressing the problem will be. Some have raised the possibility of using an alternate wage survey to avoid a government inquiry on the LCA wage level designation, but reports indicate that USCIS would nonetheless issue a request for evidence. Given that the USCIS premium processing suspension remains in place, many practitioners have yet to receive the final adjudication following the employer’s response to the government inquiry. At the moment, addressing the regulatory criteria for Specialty Occupation separately from the wage issue appears to be an effective way to address the new standard.
Employers and in-house counsel should seek immigration counsel to carefully navigate this trend.
Amy C. Cococcia, a partner in Fragomen’s New York office, is a leading member of the firm’s practice group devoted to compliance. She can be reached at [email protected].
Youngwook (“Christian”) Park, is an associate in Fragomen’s New York office. He can be reached at [email protected].
Published October 29, 2017.
