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Why Did Obama Leave H-1B Reform Off The Executive Action List? By Roger Algase

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As Greg Siskind points out in his November 21 Immigration Daily summary of President Obama's November 20 announcement of broad executive action in many other areas of both legal and illegal immigration. changes in the H-1B program did not make it onto the list. As Greg also points out, this is not because there is any lack of changes that could be made in order to make the H-1B program fairer and friendlier to the skilled workers who make such important contributions to our economy.

Nor is there any serious controversy over the power of the executive to impose almost any rules it pleases relating to both substantive and procedural requirements to be eligible for this critically important visa, which for many people has been and still is the gateway to our entire employment-base immigration system. Short of actually increasing the number of annual H-1B visas, which is desperately needed but clearly cannot be done without Congressional action, no one challenges the power of the executive to make almost any rules that it wishes in this area.

A prime example of this, of course, was the notorious Donald Neufeld memo which virtually rewrote the entire law of employer-employee relations for the sole purpose of making H-1B more difficult to be approved. This memo was on Greg's list of H-1B items which urgently needed action from the president. (My suggested action with regard to that memo would involve generous use of White House or DHS shredders.)

However, it is not my purpose here to go through a whole list of things which H-1B employers and candidates might wish that the president had done with regard to H-1B. Nor should one overlook the fact that the president did announce his intent to develop regulations which would without question benefit many people who either already have H-1B, such as the proposal to permit early filing of I-485 adjustment applications for I-140 beneficiaries whose immigrant (green card) visas are not yet current. Certainly, extending the length of OPT for additional categories of students beyond the current STEM occupations, which the president has promised to do, should also help.

My personal view is that I would like to see this extension applied to benefit F-1 students who majored in the humanities, not just technology. But my opinion is no doubt very much in the minority, so I will now move on to my main point, which deals with the thorny issue of what constitutes an H-1B specialty occupation.

As many writers have pointed out, claiming that a given H-1B offered job (which adjudicators like to call a "proffered" position, borrowing a term from the criminal law for some unfathomable reason - do they look on H-1B workers as criminals?) is not a "specialty occupation" for H-1B purposes is now a favorite reason for issuing RFE's or denials of H-1B cases.

Attorney Michelle S. Velasco has written an excellent article about this in the November 18 Immigration Daily called Challenges in Filing H-1B Visa Petitions of Uncommon Specialty Occupations. While this may be over-simplifying, her approach seems to be to provide thorough and extensive documentation of the complexity and specialization of any offered H-1B job that is not clearly identified as requiring a related specialized bachelor degree for an entry-level position in the field in question according to in the DOL's Occupational Outlook Handbook (OOH).

It is hard to argue with that, especially since the OOH often speaks to the question of what the educational requirements are for a given position with all the clarity of the Delphic or Sibylline oracles. However, my experience may have been a little bit different from Ms. Velasco's in dealing with this issue.

Based on the many RFE's I have received in H-1B cases in recent years challenging the specialty occupation nature of a given job (and also some fortunately very few and infrequent denial notices - no lawyer can possibly win every single immigration case), I have become a more than a little skeptical about whether H-1B adjudicators are willing to consider even the strongest and most persuasive outside evidence that a given H-1B job is a specialty occupation unless the OOH clearly indicates that it is.

I have found this to be especially true of the California Service Center (what a surprise!), which, unless the OOH is absolutely clear that a bachelor degree in the field (or a closely related one) is required for entry into the position, has sometimes taken the position that attempts to provide independent evidence through job descriptions, employer position in the industry and expert opinions, etc., are nothing but insidious attempts to undermine the authority of the OOH (as, in some cases, distorted or egregiously misread by the adjudicators).

It sometimes reminds me of trying to convince someone to agree on a point of Biblical interpretation by using statements from sources outside the Bible as authority. This is not always a successful strategy in matters of faith.

Nor have I always found going outside the OOH to provide evidence, no matter how strong, as helpful as it should be in dealing with Service Center adjudicators who, despite clear regulations providing four different ways of showing that a given position is a specialty occupation, three of which have no connection with the OOH, simply may not want to be convinced that a particular position is an H-1B specialty occupation unless they think that the OOH says it is.

I also believe that it is important to take these preconceptions into account in choosing the title of a given H-1B position and preparing the job description. I have not found this to be an area in which USCIS adjudicators are particularly open to being led down new and different paths, no matter how justified by the reality of a given H-1B offered position.

I have previously written in detail about an example of this in a Market Research Analyst case, which, again fortunately, was finally approved by the CSC. In that case, when responding to the RFE, my main approach was to convince the adjudicator that he/she had misread the relevant OOH entry for the job (which was certainly the case).

Without challenging the adjudicator's reading of the OOH, I am not sure if all the independent evidence in the world would have been able to overcome the aggressive tone of the RFE, which insisted that there was no way on earth that the offered job (doing extremely complex market research for one of the biggest US companies in its field) could qualify as a specialty occupation.

One would have hoped that President Obama's executive action announcement might have included something about ensuring fairer H-1B adjudications concerning this and other H-1B issues.

However, relying on less than clear OOH descriptions is far from the only strategy that USCIS Service Center adjudicators, and the AAO, are using to try to deny meritorious H-1B cases on the grounds of alleged failure to show that the offered position is a specialty occupation. Increasingly, the LCA's (Labor Condition Applications) which are required in order to support H-1B petitions are also being used as a means of attack, something they were clearly never intended for. I will discuss this further in an upcoming post.

To be continued.

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Updated 11-23-2014 at 08:04 AM by ImmigrationLawBlogs

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  1. Tobias Nojob's Avatar
    At the moment this message is being posted the White House web site hasn?t published the official Executive Order; therefore, all announcements made by President Obama granting certain undocumented aliens a temporary relief are just good intentions.

    The only official documentation available at this time is DHS? new directives dealing with the apprehension of unlawfully present immigrants:

    Caveat Emptor
  2. ImmigrationLawBlogs's Avatar
    There seems to be a misunderstanding here. The president has been talking about executive action. not an executive order. DACA was not created by executive order, but by a memo by then ICE Director John Morton.

    The "Neufeld Memo" that I referred to, in effect rewrote an important part of the H-1B law, by redefining the "employer-employee" relationship.

    Neither of those memos were executive orders, but they were examples of executive action with major immigration consequences. There have been many such, almost too many to mention specifically.

    However, the 33-page legal memo of the DHS Secretary and Counsel to the President mentioned in my November 21 post is full of examples of executive action on immigration that are not in the form of executive orders.

    There can be all the difference in the world between an executive order and "executive action".

    Having said the above, I will grant that there are quite a few details of President Obama's announcement on executive action that remain to be filled in, and we all need to be watching them closely.

    Roger Algase
    Attorney at Law
    Updated 11-22-2014 at 07:01 PM by ImmigrationLawBlogs
  3. Tobias Nojob's Avatar
    Two Legal definitions extracted from Black's Law Dictionary Ninth Edition :

    executive order. (1862) An order issued by or on behalf of the President, usu. intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.

    judicial review. (l851) 1. A court's power to review the actions of other branches or levels of government; esp., the courts' power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power. 3. A court's review of a lower court's or an administrative body's factual or legal findings.

    The term "Executive Action" as a legal definition does not appear on this edition.

    Therefore, it is fair to presuppose that all stipulated guidelines contained in "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants" memorandum are nonrenewable by the Judiciary Branch (as stated before, immigration is not a civil affair per se, instead it is governed by Admiralty Law - registration of aliens).

    However, the Executive Branch should in the opinion of the author of this message exert decisive authority issuing an Executive Order, under the grounds of National Security since the United States of America viewed from the legal perspective is currently in a State of War: it is good to remind audiences that during times of war the Executive Branch has extraordinary powers to govern by decree if necessary, and their actions in many instances cannot be reviewed either by the Legislative or the Judiciary.

    Consequently, Congress cannot under such circumstances have a say on this issue viewed from a legal perspective; otherwise, willful ignorance displayed by many members of Congress - and the lack of understanding of the American legal system seen in people fervidly opposed to any immigration reform as well- will make the issue of immigration a parody for years to come.
  4. ImmigrationLawBlogs's Avatar
    The writer of the immediately above comment has put forth an interesting theory of executive power over immigration, but it has nothing to do with actual American law. He would do well to read the more than 120 years of US Supreme Court decisions dealing with the basis of executive power over immigration, especially the most recent one, Arizona v. US (2012). He might also want to read the 33-page legal memo of the DHS and Counsel to the President explaining the legal basis for the president's November 20 announcement.

    This would be a good way to start learning something about what the current state of the law is concerning this issue.

    Roger Algase
    Updated 11-23-2014 at 06:28 AM by ImmigrationLawBlogs
  5. ILWlurker's Avatar
    Should we just repeal all numerical limits on admission of immigrants and nonimmigrants?
  6. ImmigrationLawBlogs's Avatar
    Sure, any time we make our immigration rules just a little fairer, more rational and more humane, it means that we are throwing open our borders to the entire world, inviting an invasion by millions, if not billions, of immigrants who are all uneducated criminals and ISIS members with Ebola who don't know a word of English and are going to steal lucrative high-tech American jobs by working for nothing in order to destroy our sovereignty and identity as a nation, yada, yada, yada.

    Roger Algase
  7. ILWlurker's Avatar
    You miss entirely the point of the question.

    The immigration system is not "broken," just because not everyone who wants to immigrate may do so lawfully.

    As Professor Jan Ting has argued, there are good reasons to argue against numerical limits. He disagrees, but respects those who disagree with him. You, like most "progressives" have no ability to see anyone who disagrees with you as anything other than a hateful, racist bigot.

    I think, for example, there would be good reasons why those born in Mexico or Canada, at the very least, should be returned to the status of "special immigrants" who are not subject to numerical limits. And even if ALL limits were repealed, the criminal, terrorist, and other more substantive grounds would still work, as along as everyone who seeks to enter must have a visa. So, maybe we don't really need INA 201(a) and 202.

    But as Professor Ting also points out, just "increasing the numbers," will not solve the current problem. Currently, the US admits about a million LPRs each year. Those who call our laws "harsh" conveniently leave that fact unmentioned.

    But suppose we increased the number to 10 million per year. For hopeful immigrant # 10,000,001, we would have the exact same problem as we now have for hopeful immigrant # 1,000,001.
    Updated 11-28-2014 at 01:35 PM by ILWlurker
  8. ImmigrationLawBlogs's Avatar
    I heard Professor Ting speak at a forum on immigration a few years ago. He said that we needed to show more respect for the immigration laws and make sure that they were properly enforced, since they were acts of Congress and reflect the will of the people of the United States.

    During the audience question period, i asked him if he had the same view about the Chinese exclusion laws. He was not able to give me a straight answer.

    Roger Algase
  9. ILWlurker's Avatar
    Still, emotivist blah blah, rather than a reasoned answer -- what ought the law be, in your view, as to the number of aliens admitted per year?
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