Last week, the DHS published the updated list of countries where US employers could hire H-2a or H-2b workers. The omission of India from the list prevents the use of the H-2b category for IT positions.
And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem. Anyone say national registry of postings ?
When a Department of State Consular office sends an H-1b case back to the USCIS recommending revocation, the USCIS re-affirms their prior decision in approximately 30% of cases. For many other employment based visa cases, the percentage of re-affirmations is significantly lower i.e. L-1A: 18.02%; L-1B: 13.04%; O-1: 19.23%; and, P’s: 25.93%. In our experience, an even higher percentage of cases would be re-affirmed if employers chose to respond to the Notice of Intent Revoke (NOIR) but, often it will be 6 months to a year before the NOIR is even issued and by that time, the need for the employee or the specifics of the project have changed making the case moot. For employment visa cases to be decided on the merits, the DOS and the USCIS need a speedier process.
In a recent scathing editorial/opinion piece, published in the Huffington Post, the use of H-1b visas and outsourcing were linked together. The premise of the piece was that all outsourcing is bad and that H-1b workers at lower wages are used to replace US workers. For once, it would be nice if an elected official or in this case a wannabe would do enough research to at least get some of their facts straight regarding the H-1b visa.
If you had received 251 L-1b approvals in a row, wouldn’t you feel pretty confident about your next L-1b filing ? As the Brazilian restaurant Fogo discovered, not in this current culture of no. For many years, Fogo had brought genuine Brazilian gaucho chefs from its restaurants in Brazil to work at its US restaurants using the L-1b visa. However, in 2010, that string of approvals ended and the USCIS determined that the position of a gaucho chef no longer met the definition of specialized knowledge. There was no change in the statue or regulations that preceded this change in interpretation of specialized knowledge and the outcome of its petitions. One day a genuine gaucho chef has specialized knowledge and the next day they don’t. Fogo thought that being genuine was important enough to pursue Federal litigation over this change in interpretation and brought an action in the Federal District Court for Washington DC. Unfortunately, the judge issued an opinion that upheld the denial. Although the decision does not directly impact IT employers, the continued tightening of the L-1b category is troubling.
In what has become a common occurrence, a Federal judge has spared no feelings in decrying a decision taken by a USCIS agency. The latest was the Seventh Circuit Court of Appeals wherein the Court stated of the USCIS agency action, ”An agency must give reasons for abandoning a precedent. The citation of the case by the Board is incomprehensible, and the government’s argument is nonsense.” In a case last year, another Federal judge reviewed an H-1b denial from the California Service Center, and declared that the examiner’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford a bare minimum level of professionalism, diligence, and reasoning.” Ouch. In yet another Federal Circuit case, this one from the Ninth Circuit Court of Appeals, the Judge charged the USCIS with an improper understanding of the law and with unilaterally creating and imposing new standards of evidence not required by the law. All of these decisions demonstrate a common theme by the USCIS ignoring established law and precedent and creating its own standards to achieve its desired goal of a denial. When your mandate is to deny a certain percentage of cases due to misguided visions of national security, protection of the U.S. worker, prevention of outsourcing, dissatisfaction with the current law Congress passed or even simply illusions of grandeur, it is easy to justify ignoring the rule of law. In a pure Machiavellian sense, the end goals are all seemingly good, why not break the rules. Will a new Secretary of Homeland Security mandate that the Service Centers stop creating law and simply apply the law ? Probably not; the culture of no is so deeply imbedded in the USCIS that a personnel cleansing would be needed to change it. Can Federal Court decisions like the ones cited above affect change ? Maybe; if enough individuals and U.S. employers who suffer from clearly incorrect decisions take to the Federal Courts, the political pressure created may force change and if not, at least you will get the decision you deserve and under the EAJA, the government may even be required to pay your attorney fees.
Recently, The Field Adjudicators’ Manual was updated to clarify how reciprocity fees are affected when consular officers collect the Fraud Prevention and Detection fee and/or the Border Security Act fee. Blanket L-1 visa applicants are sometimes charged reciprocity fees (formally termed “visa issuance fees” by DOS) depending on their country of origin and whether the U.S. has entered into an agreement or treaty with the applicant’s home country. Reciprocity fees are not the only type of fees associated with Blanket L-1 visas. There are also Fraud Prevention and Detection fees and Border Security Act fees for some applicants.
It’s difficult to keep up with all the different ways USCIS can come up with to charge a fee for an L visa, but below is a break down:
- There is no base fee for the filing of a Blanket L-1 visa. The I-129S instructions specifically says “[t]here is no base fee for this form.”
- Fraud Prevention and Detection Fee. This fee is $500 for everyone who files under a blanket L petition. The fee is paid to the embassy or consulate if the application was filed there, or to DHS is the petition is filed with CBP.
- Border Security Act Fee. This $2,250 fee is for applications for workers whose petitioner employs 50 or more individuals in the U.S. if more than 50% of those employees are in H-1B or L nonimmigrant status.
- Reciprocity Fees. These fees are determined by country of origin and are wide-ranging. Many countries have no reciprocity fees for L-1 visas. Others pay in the $500 range.
The new clarifications were designed to explain how all of these fees interact. In short, people who have to pay either the Fraud Prevention and Detection fee or the Border Security Act fee (or both) will receive a “discount” in the amount of that fee on their reciprocity fee.
So, if an applicant is assessed a $1000 reciprocity fee, but is also assessed a $500 Fraud Prevention and Detection Fee, his reciprocity fee will be reduced to $500.
If an applicant is assessed a $1000 reciprocity fee, but is also assessed a $2,250 Border Security Act fee, the applicant’s reciprocity fee is reduced to $0.
Last week, the USCIS provided a report to Congress on the characteristics of H-1b workers. 61% of petitions approved were for IT occupations, over 50% of H-1b’s were approved for persons with education beyond a bachelor’s degree, and the number of petitions denied increased dramatically in FY 2012; were among the many interesting facts provided in this report.