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H-1B Wage Policy Raised Questions Within Agency, Documents Show

Immigration agency officers still had questions about how to implement a 2017 H-1B wage policy months after it was put in place, the American Immigration Lawyers Association found in documents obtained from the government.

The lack of internal guidance at the USCIS caused delays in the processing of thousands of H-1B specialty occupation visa petitions and resulted in reports of inconsistent agency communications and decisions, said Diane Rish, AILA’s associate director of government relations.

The newly released documents reveal what immigration attorneys have been saying for years: that U.S. Citizenship and Immigration Services’ closer attention to wage levels and whether positions qualify as “specialty occupations” for the H-1B visa is causing increased delays and denials, Rish said.

AILA, an association of about 15,000 immigration attorneys, shared the documents with Bloomberg Law after obtaining them through settlement of a Freedom of Information Act lawsuit against the USCIS. Rish said AILA hopes to use the information both to help its members successfully navigate the H-1B petition process and to bring greater accountability to the agency.

Wage Levels Scrutinized

Issuing “policy guidance instructing officers to apply the same level of scrutiny” to both first-time and renewal petitions, as well as “emphasizing that the burden of proof for an immigration benefit request lies with” the employer, not the agency, is one of the ways the USCIS is implementing its directive to ensure that U.S. workers aren’t harmed by employers’ use of the H-1B program, an agency spokesman said.

The March 31, 2017, policy said in a footnote that USCIS officers should evaluate whether the wage the employer said it would offer to the H-1B worker matches up with the employer’s description of the position. The policy largely centered on explaining how computer programmer positions aren’t considered “specialty occupations” under the visa requirements because they don’t always require a bachelor’s degree.

Immigration attorneys complained about the timing of the policy, released the day before H-1B petitions were due at the agency for the upcoming fiscal year and thus too late for anyone to be able to respond.

Yet questions about implementation of the wage level aspect still circulated in August of that year, when representatives from the USCIS Nebraska Service Center said it was holding 2,000 H-1B petitions pending release of training slides in order to bring new hires up to speed.

“USCIS has made combating fraud and abuse a priority,” an agency spokesman said. “Major examples of H-1B abuse include the H-1B worker is not or will not be paid the wage certified” by the Labor Department “and there is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers,” he said in an email.

Year Without Guidance

The USCIS issued “Additional Guidance Regarding Wage Level Analysis” in early March 2018, nearly a full year after the policy’s release, after questions continued to arise in November 2017, emails show. And as late as May 10, 2018, “preliminary” guidance still was being issued on aspects of the policy.

Meanwhile, businesses already had seen a rise in “requests for evidence”—agency notices that more information is needed in order to make a decision about whether to grant or deny the visa, Rish said. Those requests largely targeted employers offering entry-level wages to H-1B workers.

It’s “extremely harmful when you’re trying to follow the legal immigration process,” Rish said. The assumption is that when a federal agency issues a new policy it “had its ducks in a row.”

A “majority” of requests for evidence relate to whether the position is a “specialty occupation,” the USCIS spokesman said. A petition “may be flagged” if it doesn’t meet the legal criteria, doesn’t list qualifying job assignments for the entire term of the visa, or didn’t show that the worker seeking an H-1B visa was qualified, he said.

Taking U.S. Jobs

The H-1B visa, popular in the tech industry, has been a target of the Trump administration, which views the visas as taking jobs from U.S.-born workers. Those concerns arose after attention was drawn to high-profile cases of U.S. workers being displaced by H-1B workers at companies such as Southern California Edison and Walt Disney World.

The H-1B program gets a lot of attention “when a bad actor acts,” but it’s not a “fraud-ridden program,” said Dagmar Butte, an immigration attorney with Parker Butte & Lane in Portland, Ore.

“You can’t lay it all at the Trump door,” but scrutiny of H-1Bs “has ratcheted up to ridiculous levels since 2017,” she said.

AILA had pieced together what the association thought was happening behind the scenes, based on members’ reports of communications they received from the agency, Rish said. “We were on the right track,” and “this FOIA production confirms that,” she said.

But the new information can help immigration attorneys put together H-1B petitions in a way that makes it easier for USCIS officers to see that a position does meet the visa criteria, Butte said. “The clearer we can make it for them, the better.”

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