Changes to Foreign Affairs Manual and Developments in the Adjudications of Nonimmigrant Visas Signal Increased Scrutiny of Visa Petitions

by Littler
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Recent actions by the U.S. Department of State (DOS) and Citizenship and Immigration Service (USCIS) indicate that employers seeking to hire foreign workers will likely face a more stringent visa approval process.

The DOS recently amended its Foreign Affairs Manual (FAM) to include reference to Executive Order 13788, also referred to as the “Buy American Hire American Executive Order.”  The FAM provides U.S. Consular Officers with guidance on the adjudication of nonimmigrant and immigrant visas that reflects law, regulation, and current policy.  The following FAM subchapters were revised:

  • 9 FAM 402.9: Treaty Traders, Investors, and Specialty Occupations – E Visas
  • 9 FAM 402.10 (U): Temporary Workers and Trainees – H Visas
  • 9 FAM 402.12: Intracompany Transferees – L Visas
  • 9 FAM 402.13: Aliens of Extraordinary Ability – O Visas
  • 9 FAM 402.14: Athletes, Artists, and Entertainers – P Visas
  • 9 FAM 502.4: Employment Based Immigrant Visa Classifications

Under the Overview sections of the aforementioned FAM subchapters covering E, H, L, O, P, and Employment-Based Immigrant Visas, the following was added:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to "create higher wages and employment rates for workers in the United States, and to protect their economic interests." The goal of E.O. 13788 is to protect the interests of the United States workers in the administration of our immigration system, including through the prevention of fraud or abuse . . .

Employers should anticipate that this change may result in more restrictive adjudications of visa petitions (potentially including increased delays), and, in particular, closer scrutiny of salaries paid to nonimmigrant visa applicants to ensure that U.S. workers’ wages are not being undercut. In particular, employers can anticipate that L-1B visas for intracompany specialized knowledge workers, and E visas for essential workers, will face greater scrutiny. These two categories are very commonly used by multinational corporations to quickly transfer key personnel if the company has a Blanket L visa approval, or is an E-registered company.

Indeed, the USCIS has already begun implementing stricter guidelines with regard to visa adjudication and salaries of H-1B workers. Specifically, on March 31, 2017, USCIS issued a policy memorandum reinterpreting the professional designation of computer programming positions and providing new, stricter guidance on when those positions can be considered a specialty occupation for purposes of H-1B classification. In addition, there have been numerous reports of USCIS issuing a new line of requests for evidence (RFE) that question the entry-level designation of certain H-1B positions. This particular type of request has broader implications for employers, as these types of requests are being issued across all types of positions, not just those limited to certain occupations.

Under this new trend, USCIS has been issuing RFEs targeting positions that are designated at a “Level 1.”  The wage level is an important aspect of the H visa and other categories. USCIS and The Department of Labor use a four-level wage system for specific occupational codes in the preparation of a Labor Condition Application, a prerequisite to filing an H-1B petition. Using this system, Level 1 normally reflects the most junior or entry-level positions, while Level 4 reflects the most senior-level positions within a specific occupational code.

The USCIS is now asking 1) is the position with a “Level 1” designation complex enough to actually qualify as a specialty occupation?or, 2) are the duties too complex to correspond to an entry-level position? This new line of questioning places employers in the predicament of having to explain both that the duties of the proffered position require a limited amount of independent judgment (thus, making the position entry-level), and that the duties are still sufficiently complex to warrant a determination that the position is a specialty occupation. The new RFEs have the effect of making it more difficult for employers to pay entry-level wages to H-1B workers due to increased scrutiny on what qualifies as an entry-level position. Employers should expect this trend to continue, and, importantly, should clearly outline the duties and requirements of the proffered position to ensure that they meet definitional thresholds.

Finally, employers should be cognizant of proposed wages for their nonimmigrant personnel. Officers at Consular Posts adjudicating specialized knowledge or essential positions are likely to closely review proposed salaries. If these are at the lower end of the wage scale for those occupations, employers may have a more difficult time getting these visas approved. Furthermore, employers should evaluate their experience requirements for positions open to nonimmigrant visa sponsorship, as USCIS has demonstrated that they will be looking closely at wage levels relative to complexity of the proposed position.

 

Footnotes

​1  A specialty occupation is normally a position that requires at least a bachelor’s-level degree in a specific field of study.

 

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Littler
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