End of the 3-for-1 Rule?

The “3-for-1 Rule” states that three years of work experience is equal to one year of education in the H-1B context. This rule has been followed for years without question but now the rule might not be as straightforward as it used to be. The Rule was routinely applied to cases where a beneficiary had only completed part of a bachelor’s degree program and was using years of experience to cover the remaining years. After the AAO’s recent decision, the rule should no longer be considered an uncomplicated 3:1 ratio. While this a non-precedential decision, the results could have far reaching effects, especially on how RFE’s are issued and responded to.

The AAO begins by stating that the 3-for-1 rule has been misapplied and is exclusively reserved for use by USCIS agency-determinations of educational equivalency. This means that going forward, technically the Service is the only one that can apply the rule.

Next, the AAO points out that not all years of experience are equal. The requirements for RFE’s are about to become very high. Petitioner’s will be required to “clearly demonstrated” that a beneficiary’s years of experience include the theoretical and practical application of specialized knowledge required by the specialty occupation, that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation and that the alien has recognition of expertise in the specialty. In short, letters of experience will now need to be very detailed and contain specific elements.

However, you also need to show that the beneficiary has expertise in the specialty. This is most easily demonstrated by recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation. This will result in letters from experts becoming a requirement if you would like experience considered. The decision also outlined who can be considered an “expert” for these letters. Remember, even if you obtain great letters USCIS can still determine that those years don’t equal a year of baccalaureate experience.
Finally, the AAO found that only reliable credentials evaluation services that specializes in evaluating foreign education credentials can evaluate a foreign national’s education. So, the submission to the USCIS must now include an evaluation from a foreign credentials evaluation service, expert letters can only be used to show recognition of expertise not educational equivalency.

In sum, the 3 for 1 rule should not be considered the simple 3:1 ratio it has been in the past. Going forward, proving that a beneficiary meets the H-1B educational requirements through years of experience is a completely new animal.

Department of State Is Experiencing Technical Difficulties

The Department of State has reported that its offices are experiencing technical difficulties due to system maintenance. Offices including the U.S. Embassies and Consulates, the National Visa Center, and the Kentucky Consular Center are reporting delays in service, including problems in receiving and sending emails. Individuals who email the Department of State should be prepared that responses will take longer than normal. The Hammond Law Group will provide further updates as they are received.

Update on H-2B Visa Program

On March 4, 2015, the federal district court in the Northern District Court of Florida vacated the Department of Labor’s authority to administer temporary labor certifications and requests for prevailing wage determinations for the H-2B program. As a result, on March 6, 2015, USCIS suspended adjudication of all H-2B petitions for temporary non-agricultural workers. The standstill of the H-2B visa program could have a high impact on many businesses and it could cause great hardship to the hospitality and landscaping industry, therefore, on March 16, 2014, the Department of Labor and Department of Homeland Security (DHS) issued a joint statement. The statement explains that DHS and the Department of Labor are working towards issuing a joint Interim Final Rule (IFR). The rule should be disseminated by April 30, 2015, and should have guidance on how to proceed with the H-2B process. Moreover, the Department of Labor is trying to obtain relief from the Court’s ruling so that they can continue processing labor certifications and prevailing wage determinations until the IFR is promulgated.

We will provide additional information in the upcoming weeks.

Senator Hatch calls out Senator Grassley

Last week, Computerworld published comments from Senator Hatch in which he essentially called out Senator Grassley for being a protectionist and simply ignoring the economic realties of the global marketplace that exists in 2015 by virtue of his plan to prevent an increase in the H-1b cap without including unnecessary and onerous requirements. The proposals of Senator Grassley, though seemingly reasonable on the surface, would essentially destroy the H-1b visa particularly for IT staffing companies who are a large user of the H-1b program. Given Senator Grassley’s history of attacks on the staffing industry, his position should not be a surprise. It is refreshing to see Senator Hatch take a pro business and pro American position however, given Senator Grassley’s position as the chair of the Senate Judiciary Committee, he may have sufficient power to single-handedly prevent business immigration reform from happening. It should be noted that both Senators are Republicans and senior members of the Senate so this type of public exchange is a bit unusual. The back drop of this discussion is the upcoming April 1st H-1b cap lottery filing deadline at which, literally 1000’s of professionals, many of them with U.S. graduate degrees, hired by U.S. employers, will be rejected and told that their services are not wanted in the U.S. Last year, over 85,000 professional workers were rejected and many think this year, there will be even more. The 85,000 rejected workers would’ve been tax-paying productive workers and as countless economic studies have shown, H-1b workers serve to create U.S. jobs, not eliminate them. The continued insistence by politicians such as Senator Grassley, on building walls, rather than building the American economy remains troubling. The foreign outsourcing industry is grateful for his efforts though.

April Visa Bulletin

The April Visa bulletin has been released by the Department of State and once again India EB2 and all other countries EB3 and the Philippines EB3 categories saw nice forward movement. Unfortunately, China EB3 saw retrogression.

PACKAGING COMPANY FINED THOUSANDS FOR BACKDATING I-9s

OCAHO ordered a California-based Liberty Packaging Inc. to pay $12000 for acting in bad faith by backdating 18 I-9 forms following a NOI (Notice of Inspection). The fine was lowered from $17000 by an Administrative Law Judge because they were a small employer with no previous violations.
Immigrations and Customs Enforcement became suspicious because markings on some of the forms implied that they had been completed after the respective date of hire. The case is USA v. Liberty Packaging Inc., Case Number 14A00027, before the U.S. Department of Justice’s Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO).

USCIS Teleconference Yields Additional Information About New H-4 EAD Regulation

On Thursday, February 26, 2015, USCIS held a teleconference in order to provide more information about the recently published regulation extending employment authorization to certain H-4 visa holders who have reached a certain point in their green card application process.

The purpose of the regulation is to to provide employment authorization for H-4 spouses if their spouse who is working on an H-1B visa has an approved I-140, or has extended their H-1B status beyond the 6-year limitation due to the fact that they have a green card case that has been pending for at least 365 days.

During the course of that call, the following information was provided:

1. The regulation will take effect on May 26, 2015. No applications will be accepted prior to that date. Any application sent to USCIS on that date will be rejected and must be re-filed after May 26th.

2. A new I-765, Application for Employment Authorization (“I-765″) has been prepared (though not yet published) which will need to be used to file the application.

3. Upon approval, the applicant will be issued an Employment Authorization Document (EAD), which is a card that looks much like a US driver’s license. It will have an expiration date on it.

4. The addresses to which applications under this regulation will be published closer in time to the May 26th filing date.

5. USCIS will be publishing a FAQ which will provide answers to a number of questions about the new regulation. That will be published closer to May 26, 2015. A number of callers asked questions which the panel on the Teleconference was unable to answer. Many of these will be addressed in the FAQ.

6. There is no limit on the number of cases which will be accepted for filing during the course of a year.

7. USCIS expects approximately 179,000 cases to be filed in the first year after the regulation become effective.

8. The processing time for the I-765 application is 90 days, as with all other I-765 applications.

9. USCIS does not currently expect applicants will have to go to an Application Support Center (ASC) for a biometrics appointment in order to process the cards. The applications will be processed using the photos submitted with the application.

10. The panel could not answer the question of whether the applicant has to be in the US in order to file the application or remain in the US to have it processed. This will be answered in the FAQ.

11. The validity period of the EAD card will match the validity period of the H-4 visa holder’s H-4 visa status.

12. The EAD does not replace the H-4 status. The applicant will be required to maintain H-4 status once the EAD is approved.

13. The panel could not answer the question of what will happen to the EAD if an H-4 is issued an EAD card and then the principal H-1B holder changes jobs and the prior employer’s I-140 is revoked. This will be addressed in the FAQ. One of the options for approving the I-765 is that the applicant’s spouse has a valid I-140. If the I-140 is revoked after the EAD card is issued, the question arises about what happens to the validity of the EAD card issued based on the now revoked I-140.

14. If an H-4 holder is eligible for an EAD card because their H-1B spouse has an approved I-140, the I-140 must remain valid in order for the H-4 for file an I-765. If the I-140 has been revoked, the H-4 is no longer eligible to receive an EAD.

15. The EAD does not include travel authorization as EAD cards issued in connection with Form I-485, Application to Adjust Status do. The applicant will need to obtain an H-4 stamp in their passport in order to continue to travel in and out of the US.

16. An eligible individual can file a form I-765 application concurrently with an H-1B extension and I-539 Application to Extend Status. The H-1B and I-539 will be adjudicated first, and if approved, the processing of the I-765 will then start. The I-765 will not be started until the I-539 is approved.

17. Premium Processing will not be available for form I-765, Application for Employment Authorization.

18. The I-765 Applicant will be required to prove eligibility, which may include submitting a copy of the approved I-140, prior H-1B approval notices, and maintenance of status.

19. The I-765 under this regulation can only be filed through the paper process; it cannot be filed online.

20. An H-4 holder cannot begin working until they have received the actual EAD card. Filing the application and receiving a receipt notice are not sufficient to begin working. The applicant must have the actual EAD card in hand in order to start working.

21. This is a permanent regulatory change. There are not plans to take this program away in the future. It is not specifically tied to the Executive Action currently being challenged in lawsuits against the President’s Executive Action because it is not an exercise of the President’s executive authority – the option was created by regulation and stands as law in the US at this time.

H-4 EAD Rule Released

At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.

District Court Orders Granting of H-1B Petition Based on Equivalent Degree

There might be a shakeup in how USCIS adjudicates educational equivalency. Lately, there had been a trend of Officers cracking down on degrees that were not “in-line” with the beneficiary’s proposed specialty occupation. In Raj and Company v. USCIS, the U.S. District Court for the Western District of Washington at Seattle bucked this trend and recently found that the position of “market research analyst” met qualifications as a “specialty occupation,” stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Further, the position required as a minimum for entry a specialized degree in “market research,” or where no such degree is available, an equivalent technical degree accompanied by relevant coursework.

However, this will not lead to a free-for-all to anyone with a bachelor’s degree. The Court noted that the patently specialized nature of the position sets it apart from those that merely require a generic degree i.e. when employers are not particularly concerned with what type of bachelor’s an applicant has achieved. It is a positive turn of events that the courts understand that there is not a specific degree for every position.

Federal Court’s Injunction May Not Impact Business Measures

As many of you read earlier this week, a Federal District court issued an injunction barring the implementation of portions of President Obama’s Executive Action. The Court’s ruling was based upon the Administrative Procedure’s Act (APA). It is not believed that the Court’s ruling will have any impact on the business measures announced by President Obama. The reason, is that the business measures were not being implemented by decree but, were directives to issue regulations consistent with the APA. We fully expect the regulatory process started by the President’s Executive Action to continue in spite of this injunction.