In several recent cases, the Immigration Service has adopted two new issues and used them to deny otherwise approvable H-1 petitions. Both of these issues could substantially increase the cost of employing H-1 workers and in some cases may eliminate that option altogether.
The first issue, and the one that causes the most concern, is a new approach in evaluating the Labor Condition Application (LCA) which is filed with the Department of Labor before the H-1 petition is filed with the Immigration Service. In the past, the Immigration Service has simply determined that the LCA was certified by the Department of Labor and ended their inquiry at that point. Under the new analysis, the Immigration Service is actually looking at the level of wages stated in the LCA and the language used by the Department of Labor in each of those levels.
The Department of Labor (DOL) uses four separate levels to allocate wage rates based on the complexity of the position. For example, Level I is the entry level wage and does not require detailed knowledge of the job in order to perform the duties. Level IV is the highest level and usually involves management, supervision and responsibility for others in a similar position. The Immigration Service now says that if the employer chooses Level I wages, which is at the low end of the range, based on the language DOL uses in the Level I criteria the position may not qualify as a “specialty occupation” and will deny the H-1 petition. Since most H-1 employers choose their own wage level when filing the LCA, this may require a significant increase in wage determination battles with DOL, a significant increase in wages paid to H-1 employees, or perhaps even the assistance of DOL in changing the perception of the Immigration Service. It will be interesting to see if the Immigration Service continues this analysis if instead of the employer making the wage level determination, it is made by the Department of Labor. To my knowledge that situation has not been addressed by the Service.
The second issue will have less of an impact on the overall H-1 category but is nonetheless significant. In a recent case, the Administrative Appeals Office (AAO) denied an H-1 finding that the position did not meet the definition of a “specialty occupation”. In that case, the employer had submitted a detailed evaluation from a college professor which equated the job duties to specific course work and concluded that the position did in fact require a person with at least a bachelor’s degree. In its decision, the AAO raised the novel requirement that the evaluator actually visit the company and discuss the position with employees and management before being qualified to issue the evaluation. In view of the fact that most of these position evaluations are done based upon the job description and basic information about the company, often by college professors and other experts in other parts of the country, this requirement may significantly increase the cost of these evaluations.
As with most of the new issues raised by the Immigration Service, these new practices will have to be submitted to federal courts to determine their validity. Until then, employers will have to be extremely careful in selecting the wage level for the prevailing wage determination in the H-1 context and also provide much more information and detail to a position evaluator.