HOW TO TACKLE H-1B EXTENSIONS IN THE NEW NO-DEFERENCE ERA?
by Rabindra Singh
Giving shape and showing loyalty to President Trump’s Buy American, Hire American initiative, the newly appointed U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna implemented a new Policy Memorandum (Policy Memo) which specifically instructs all USCIS officers not to give deference to any previously approved nonimmigrant visa petition even if the petitioner, beneficiary and underlying facts remain unchanged from a previously approved petition.
Per new Policy Memo, USCIS is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for all nonimmigrant visa petitions filed using Form I-129, Petition for a Nonimmigrnat Worker.
The new Policy Memo basically formalized the non-deference approach previously adopted and applied only to certain nonimmigrant visa extension petitions (such as L-1Bs), and uniformly applied it to other nonimmigrant visa extension petitions using Form I-129. Business immigration practitioners could vividly recall that USCIS adopted and started applying the informal non-deference policy back in 2008. The undeclared reasoning back then was to protect jobs for American workers during the economic meltdown caused by the housing market crisis. Though the push-back from various multinational corporations ultimately forced the Obama Administration to roll out the “L-1B Adjudications Policy” in August 2015 which specifically mentioned applying deference when adjudicating L-1B extension petitions, it was too late by then and nothing much really changed.
The Trump Administration’s new Policy Memo supersedes and rescinds the 2004 Yates Memo and Section VII of the August 2015 Policy Memorandum rolled out by then Obama Administration. The new Policy Memo is binding on all USCIS employees and is effective immediately.
Concerned that 2004 Yates Memo imposed burden on the USCIS officers rather on the Petitioner and USCIS officers felt constrained in requesting additional documentation in the course of adjudicating an extension petition, USCIS’ new Director decided to promulgate the new Policy Memo.
Not sure about the USCIS officers but certainly employers and experienced business immigration practitioners could comment more on who felt “burdened” and “constrained” after receiving long-form Request for Evidence (RFE), which often ran up to 7-8 pages, from USCIS officers adjudicating L-1B extension petitions. Rigorous application of no-deference approach by USCIS officers adjudicating L-1B extension petitions, which started in 2008, eventually forced some America corporations to completely stop using the L-1B visa program.
So, does the new Policy Memo wants to relieve USCIS officers of the burden and constraint imposed by the 2004 Yates Memo or does it aims to implement Trump Administration’s ‘Buy American, Hire American’ policy? I believe, like Director Cisna, everyone knows the answer.
Whatever could have been Director Cisna’s motivational factor in implementing the new Policy Memo, the truth, bad or worse, right now is that USCIS has implemented a non-deference policy when adjudicating any nonimmigrant visa extension petition with immediate effect. What does that mean for employers and immigration practitioners? What all checks and balances, and vetting would now be required before submitting extension petitions. Because the universe of nonimmigrant visa petition is quite big, this article primarily focus on few practice pointers which should be taken into consideration when filing an H-1B extension petition post implementation of the new Policy Memo by USCIS.
O*NET Standard Occupational Classification (SOC) Code Selection: First and foremost, the SOC code should be carefully selected. Among impacting other things such as skills, educational requirement, and work activities; improper SOC code selection could impact the prevailing wage selection for the proffered position.
Since USCIS has in the recent past shown profound love towards the Department of Labor (DOL) Prevailing Wage Determination Policy Guidance (Wage Guidance Policy) by selectively quoting from it when challenging Level I salary selection by the employers who had submitted H-1B cap petitions for the FY 2018, it would be highly beneficial and prudent to familiarize oneself with what the Wage Guidance Policy has to say regarding O*NET SOC code selection and how it impacts prevailing wage selection.
The Wage Guidance Policy, in pertinent part, states that: “It is important to remember that wage levels are determined only after selecting the most relevant O*NET-SOC occupational code classification. The selection of the O*NET-SOC code should not be based solely on the title of the employer’s job offer. The NPWHC should consider the particulars of the employers’s job offer and compare the full description to the tasks, knowledge, , and work activities generally associated with an O*NET-SOC occupation to insure the most relevant occupational code has been selected.”
As such, more than ever, employer and practitioners should pay careful attention to the proper SOC code selection when submitting a Labor Condition Application (LCA) to the DOL for approval. Remember that the approval of previous H-1B petition would no longer guarantee approval of an H-1B extension even if the petitioner, beneficiary and underlying facts remain unchanged. For instance, the correct SOC code to use for a software developer position is 15-1132. Even if the employer/practitioner got lucky by selecting the SOC Code of 15-1131 (applicable to Computer Programmers) on a previously approved H-1B petition for a Software Developer position, caution must be exercised by selecting 15-1132 (applicable to Software Developers, Applications) when submitting an H-1B extension petition.
Education and/or Experience Evaluation: Previously submitted educational and/or experience evaluation may create issue if not re-examined and submitted again with an H-1B extension petition. Now is the time to take a closer look at the educational and/or experience evaluation, specifically in cases where the approved H-1B petition mentioned a U.S. equivalent education that was either not in the same or in a closely-related field as stated by the DOL’s Occupational Outlook Handbook (OOH) for that particular occupational classification.
Consider the case of an approved H-1B petition for a software developer position wherein the petitioner mentioned that the beneficiary holds an education equivalent to a U.S. Bachelor of Science Degree in Electrical Engineering. Note that the OOH states that: Software developers usually have a bachelor’s degree, typically in computer science, software engineering, or a related field. As such, assuming that the beneficiary has gained few years of work experience in the computer science field in the United States after being admitted in an H-1B nonimmigrant status, it would be a good idea to consider submitting an educational and experience evaluation with the H-1B extension petition to avoid USCIS raising any objection that the Beneficiary does not hold an education (or its equivalent) in the specific or a closely related field as mentioned by the OOH.
Further, in cases where the beneficiary qualified for the specialty occupation position based solely on experience evaluation, one must look carefully into whether or not the previously submitted experience evaluation met all regulatory requirements. Especially, whether or not the previously submitted experience evaluation was provided by an official “formally” involved with the college or university’s official program for granting credit based on training and/or experience.
Compare Employer’s Job Requirement with the O*NET Information when Determining Wage Level: In the new era of no-deference, employers and practitioners should make it a routine practice to compare proffered position requirements with the O*NET information for the selected occupational category.
The DOL’s Wage Guidance Policy specifically instructs National Prevailing Wage and Helpdesk Center (NPWHC) to follow the step-by-step process in determining the appropriate wage level by taking into account the information available on O*NET for that particular occupation. Particularly, in the Section “Process for Determining Wage Level”, the Wage Guidance Policy states that: The NPWHC shall use O*NET information to identify the tasks, work activities, knowledge, and skills generally required for performance in an occupation. A “comparison between the particulars of the employer’s job offer to the requirement for similar (O*NET) occupations shall be used” to determine the appropriate wage level…Information contained in the O*NET Job Zones provides guidance in determining whether the job offer is for an “entry level, qualified, experienced, or fully competent” employee for making the determination of wage level.
As such, when selecting a wage level, employers and practitioners should endeavor to compare and analyze how employer’s position requirements—especially the tasks, work activities, skills and knowledge—compare to O*NET information available for the selected occupational classification.
Additionally, the entire Wage Guidance Policy should be considered when selecting a wage level. Note that the 36-page Wage Guidance Policy provides both a qualitative description of the four OES wage levels and a quantitative five-step method for analyzing job requirements and determining which level should apply. Going forward, employers and practitioners should analyze and, if required, be ready to share with USCIS both the quantitative five-step process and the qualitative analysis utilized in determining the wage level for the proffered position.
Since USCIS would now start targeting any flaw in the previously approved petition to deny H-1B extension petitions, extreme caution and vetting would be required on the part of employers and immigration practitioners. Gone are the days when it was considered easy and routine to prepare an H-1B extension petition. Every aspect of the H-1B extension petition would now need to be carefully analyzed, assessed and re-examined before submission. Not doing so could have disastrous consequences on H-1B Beneficiaries who have been waiting for years for the Priority Date to become current to adjust status that of a Lawful Permanent Resident in the United States. It would also adversely impact the H-1B employers who have invested so much in such H-1B employees and desperately needs to retain them in order to remain competitive in the highly competitive global economy.
 April 23, 2004 Memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” from William Yates, USCIS Associate Director for Operations.
 to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.
 filed using Form I-129
 revised November 2009
 Section II.B.2.
 including Appendix A to G.
 as described in section II.B. of the DOL’s Wage Guidance Policy