Voice of Immigration

How to WIN an H-1B Visa After the Trump Immigration Ban!

Episode Summary

Were you hoping to enter the USA in 2020 on an H-1B visa? Did Trump's latest executive order banning the #H1B visa into the USA impact you greatly? Well, Jon Velie CEO of OnlineVisas, will share how to win an H-1B visa after the Trump immigration ban. Jon goes into great lengths to explain how to gain entry on an H-1B even after being banned by President Trump.

Episode Notes

There are 6 significant things that have happened so far in 2020: 

  1. The Executive Order of President Trump suspending the entry of H-1B visas from outside the US, with exceptions for certain types of H-1Bs
  2. The ITServe vs. Cissna and other Federal cases that held USCIS memoranda of 2010 and 2018 were invalid under the Regulations.
  3. The Settlement Agreement between USCIS and ITServe indicating the Memoranda would no longer be used.
  4. The new Policy Memorandum of June 17, 2020. Analysis of what it changes and as importantly what is still at issue.
  5. COVID-19 Pandemic
  6. Public Charge Issues

Learn how you can still win an H-1B visa after Trump's immigration ban by watching this in-depth video from Jon Velie of OnlineVisas. Even after the President's latest proclamation, there are still ways to obtain an H-1B visa in 2020. If you would like to win an H-1B visa after the ban, please contact us at OnlineVisas to discuss your options.

Episode Transcription

Hi. Welcome to Voice of Immigration. I'm your host, Jon Velie, CEO of OnlineVisas. This is How to Win an H-1B visa after Trump's immigration ban. There are six very significant things that have happened this year that have all occurred since March 2020 that will really impact how you file for an H-1B visa for the remainder of this year and going forward.

So number one, the executive order of President Trump suspending entry of H-1B visas and other visas from outside the US with exceptions for certain types. Number two, the ITServe versus Cissna and other federal cases that held the USCIS memorandum from 2010 and 2018 as invalid under the Code of Federal Regulations. Number three, the settlement agreement that stemmed from the ITServe versus Cissna case. Number four, the new policy memorandum of June 17th, 2020 that removed the earlier memos and implemented a new policy to comply with the settlement agreement stemming from the case of ITServe Alliance versus Cissna. And number five, the COVID-19 pandemic. And six, the Public Charge issues.

All of these things are different this year, but yet you can still file H-1B visas in 2020 after the Trump immigration ban. We're going to dig in and show you how to do this. This is going to be a fairly long video. If you're watching it on YouTube, please subscribe and turn on your notifications and we'll keep you up to speed. Things are happening all the time. In this ban, there is talk of new federal regulations to come out of the Department of Labor and Homeland Security that could impact H-1B visas and other visas going forward. So stay tuned with us on that.

If you're watching it on YouTube, please like and share and comment. We'd like to keep you posted and keep you on top of what we're doing. So let's break it down. Number one, the impact of the Presidential Proclamation of June 22nd, 2020 banning H-1B and other visas into the United States. So in short the Executive Order or Presidential Proclamation as they call it, only stops the entry of H-1B visas from outside the US if not processed or stamp by a US consulate outside the United States prior to June 24th, 2020.

So what that means is that if you're in the United States on another type of visa, you can change your status from that other type of visa, such as a visitor visa, such as a student visa or a student visa with OPT or any of the other visas to the H-1B visa. You can still do that despite the ban, okay? It also means that if you're on an H-1B visa and you want to extend that H-1 visa, the H-1B visa, you can do that. You can also amend that H-1B visa if you have a different type of job with the same employer or from a different employer.

So there is still some meat left on this bone. There are still H-1Bs we can do, ladies and gentlemen, so let's dig in on that. Also, if you're outside the United States and you've already gone to the consulate and you've already had your visas stamped into your passport, you can still enter as well. So it means you can't get an H-1B visa even if you had it approved, even if you've tried to set up a consular visit to go into your consulate and get the visa stamped in and couldn't because the consulates are closed, you can't do it now and that's very unfortunate but that's where we are right now.

Now there are some exceptions and we'll go into that. So if you're in that situation, the exceptions to the H-1B ban are critical to defense, law enforcement, diplomacy or other national security of the US. Another exception to that are nurses and physicians working in hospitals related to COVID-19. Medical researchers for COVID-19. National interest. We'll go into that a little bit more.

Temporary labor to the US food supply chain. How far does that go. So if you don't know if you're a national interest or if your job in the US food supply chain in a restaurant or plucking chickens, if that applies to you, contact us and we'll go over the facts of your case. That's going to be very specific facts, specific stuff.

Here's another one. Necessary to facilitate the immediate and continued economic recovery of the United States. Okay. What does that mean? What we understand is a waiver process for those kind of undefined areas that haven't been defined yet. There's no discussion on how that waiver will take place. We think it will happen at the US consulate level.

So if you get your visa approved, so you go ahead and file your I-129 and your application to get your visa approved and you believe that this job is necessary to facilitate the median continued economic recovery of the United States, that sounds pretty broad, doesn't it? Or it's in the national interest. Pretty broad, doesn't it? That you would have a waiver and you would make that argument to the US consulate. So that would be very, very sophisticated. We can get involved and help you on that. So go to OnlineVisas and check that out.

National interest. We kind of have some understanding on how to do that because there is a national interest waiver for the EB-2 permanent residency visa. That's a green card into the national interest waiver. So there's sort of a category there. Now, we don't know if it's going to be as pronounced as the green card, for a national interest for an H-1B. It may not be. We don't know that yet. But that's kind of what we would look at immediately.

Now, the how would you prove the immediate and continued economic recovery of the United States. My job creates jobs. My job creates money for my company which creates lots of jobs. So maybe there's something around there. I mean, we can get experts involved. We would look at it in the same way we look at extraordinary ability. And what I mean by that is not the same criteria. But you look at extraordinary ability by having evidence supported by experts.

So we look at whether this person has this job and what that job does. Then our evidence is the contract in which they do it, here is the type of work they're doing, here's how it impacts the economy. And then we have experts examine that and we help draft those letters for those experts so that they can testify on paper for what that impact is. And then we support those experts with tertiary evidence. Tertiary evidence can be articles or any other piece of evidence that maybe doesn't support our client directly, but the position that the expert has.

So those are the type of things that we would probably look at that. So don't give up. If you're outside the United States and you think that might help you or if you're a company that wants to bring in this really important person, that's how we'd address that as far as we know today. This is a fluid situation. Nobody's done this before. There is no expert. So just being creative and looking at it and thinking about it and those that understand those issues will do that.

Okay. So other things that are not covered. The H-1B1, right? The H-1B specifically excluded. The H-1B1 wasn't. And that's for citizens of Chile and Singapore. And they're not included because they're protected by a treaty. Which means it also doesn't deal with the E3, which although it doesn't have an H-1B in its name like the H-1B1 does, it is effectively the same visa except it's for Australians. But it's also protected by treaty and it has not been excluded.

And also the TNs, Treaty NAFTA, TNs are for Canadians and Mexicans. Now, that doesn't work exactly like the H-1B and it's not in there, but they can do that. Some believe that Canadians may be exempted because they can enter without visas under Canadian passports so that gives them an entry into the United States. So they could come into the United States and then file for their H-1B then, this is another possibility, and again no one's an expert on this yet, but we're just analyzing it as best we can.

So forgive us if this turns out to be wrong later, but this is our analysis as we stand here today, just days after this that a Canadian doesn't have to go to a consulate. And the consulates are the ones that would ban that. And they don't have the visa stamp in their passport. They merely go to the border which isn't open yet, by the way. So they would go to the border and they're just stamped to enter.

So we believe because they're quiet on the Canadians that the Canadians might be able to do H-1Bs even if outside the country that way or like I said, enter the United States and change their status from entering. And when a Canadian enters because they don't have to have a visa, it's effectively a B-1/B-2. So a change of status from that. And maybe the way to do that is that the Trump administration has looked at intent. It's looked at intent.

When you enter on a B-1/B-2 visa from any other country or a Canadian when you enter, you are without saying it, stating you intend to leave when you come back. So if you enter on that B-1/B-2 visa, you can't just file the next day. Intent has been changed under the Trump administration from 60 days to 90 days. So it would be coming in, maybe exploring a job situation, interviewing, finding a job, then deciding and at the 90th day filing an I-129 to change your status from a Canadian entering effectively like a B-1/B-2.

So we're going to go and talk about other sections of what has impacted the processing of H-1B visas besides the ban. So the impact of the ITServe versus Cissna case, the settlement of that case and the memo of June 17th, 2020 on the H-1B visa processing. This will be a longer section because it's dealing with three things, but they're all related and it's what the memo says and how it relates to the settlement language and more importantly, how does it relate to what the federal judges said and what the federal court held that you can use when you are processing H-1B visas?

Okay. So this is where if you're in the United States or on an exception to the ban, you still need to obtain the H-1B visa. And look, a lot of people are thinking, now that the ITServe is going to end, it's going to be rubber-stamped. And we don't even need to have an immigration attorney to process these H-1B visas. Well, not so fast. Immigration is hard right now. This administration did not do this ban because it likes immigration. This administration did not do this settlement because it wanted to do this settlement. It had to because a judge told them to. But we are not seeing an easing or going on immigration visas.

It's tough as its ever been in the history of immigration. The toughest I've ever seen in the 26 years I've been practicing law is right now. And so there are going to be things that are going to be easier to do. There are going to be things that this case allows you to do, but that's not all of them. So what we're going to do is we're going to go through the memo and then we're going to say what it says. Here's the question it'll ask and then it'll have an answer.

We've done this before on other videos. If you want to see more of that, go to those other videos that we have on our YouTube channel and check it out. But we're going to do that and then we're going to say what it means and we're going to give you hints. So think of it as Immigration for Dummies. Those great yellow books that lay something out and have no tool. We'll go through those things and then we'll give you our analysis of that. So follow me through here.

So after the ITServe case held that the 2010 and 2000, I think it's '18 memorandums that the USCIS used with a Defensor case. The application of the Defensor case, they denied a lot of H-1B visas particularly for those that petition for employees to be placed at what we call third-party sites or end-users. So that's where a staffing company might hire somebody, have a vendor agreement then go to a big company or another company and send that person over there.

And those folks were right in the crosshairs of the last memorandum that was called the itineraries and contracts memorandum that came out a couple of years back. That memorandum has been thrown out and that memorandum was on the back of in reference to 2010 memorandum, which is really how and why ITServe Alliance even started. So ITServe Alliance is a wonderful group of Americans that are mostly of Indian descent that have companies that have been supporting our tech industry even before the economic recession of 2008 and 2009.

And many of them started coming over to deal with the Y2K in 2000. Coming over on student visas on H-1Bs themselves and now have built this industry of over a thousand companies that have been supporting all these other companies in recruiting and training, and sending workers to their locations on projects and arming them with some of the best technology. They're really, really driving our world and it's cloud-based stuff, big data, artificial intelligence, blockchain.

I mean, these are remarkable people that are bringing up, they're helping it back. Our administration has kind of dumbfoundedly attacked this industry and really the staffing industry. So the courts have pummeled them. They pummeled them with a series of cases, one of which was called ITServe Alliance versus Cissna. Francis Cissna was the head of Homeland Security. So you'll see some different things. And we're going to go through that language and then we'll go through some of the other cases too.

Okay. So let's dig into the memorandum. So the first question is under the category of the employer/employee relationship. A number of the reasons that USCIS have been denying those cases, have been handled in this memo. After that, we're going to go through those that have not been handled in the memo that is still going to be there that you're going to need to consider.

So we're going to do these first. So the employer-employee relationship is a big one and this really is the right-to-control, the term of art that deals with it. So the question in the memo asked, "Should an officer consider an H-1B petitioner and an H-1B beneficiary to have an employer-employee relationship if they meet only one of the higher pay fire, supervisor, otherwise control the work of factors under 8 CFR, 214.2H 42?"

Okay, so what USCIS had been doing prior to that is making you hit more than one of those. But the language of the regulation says that it's hire, pay, fire, supervise or otherwise control the work of. They took out the "or" and made it an "and", right? So the memos says, "The officer should apply the existing regulatory definition in assessing whether the employer-employee has this relationship and they should use the "or."

So that's what they look at. So it says there, H-1B petitioners are required to submit a Labor Condition Application. That's called an LCA and a copy of a written contract between the petitioner and beneficiary or a summary of the terms of an oral agreement if a written contract does not exist depending on the content of such documentation. It may establish the employer-employee relationship. The officer may not apply the prior rescinded guidance.

Okay. So what does that mean? The contract language must be clear and indicate that any of the four factors exist. The information could be included in the formal contract or an engagement agreement, a letter of support for an employee or other co-signed document between the petitioner and beneficiary. So the language is important. What we do for our clients is when we look at those things, we see others might just slap it in there, put a table of contents and jargon and hope it's okay.

But what you want to look for is inconsistencies. That's where they'll get you. So you only have to do one of those things so it can say that, but it should be spelled out in one of those documents. All right. So where does this come from? So the case law is pretty interesting. The ITC court addressed the USCIS repeated denials of ease of petitions for failure to demonstrate a valid employer-employee relationship.

The court held it's sufficient to establish a relationship by the meaning of the plain language, which is hire, pay, fire, supervise or otherwise control. So the ITServe reasoned that the additional requirement of providing day-to-day assignments to show the requirement control of employees was erroneous and at meeting any of the four criteria under the regulations are sufficient.

So that's kind of where we were. So they were requiring day-to-day assignments and you'll hear that later in the memo. So day-to-day assignments are not necessary to show a continuation to that. They may use them in other ways. And so we'll get into that, the devil is in the details and what you put in. So you have to be careful with these guys. They can still get you.

Okay. So number two, must the H-1B petitioner establish that employment exists at the time of filing. So this was a big deal, this is a really big deal to immigration. And the reason it's a big deal is that some of the staffing companies in the past have applied for H-1B visas at the April 1st deadline which is now a little bit different because you now have a March registration. Also, it just happened this year. March registration up through March 24th. And then if you're picked for the lottery until June 31st. So 90 days after, April 1st to file.

Okay. So what they were doing before the filing date which is now June 31st and before that, it was April 1st. They would apply for a bunch of visas and then they would say, "I can get the work before October 1st when they start." This is what immigration doesn't like. They don't think there's work there. This is their answer to, "Must the H-1B petitioner establish the employment existed at the time of filing?"

A bonafide job offer must exist at the time of filing. The petitioner is required to attest under penalty of perjury on the H-1B petition that the LC and the LCA that all of the information contained on petition and supporting documentation is complete, true, and correct. Okay. So if you think that you can go back and use the old-style that people were getting away with that you can apply for a bunch of visas and you don't have work, then they can get you on this attestation which means they can find you're fraudulent. They could debar you from your ability to file for visas. Maybe even turn it into a crime.

So I really suggest not doing that. But can you have enough work? You wonder what you don't have to do that the courts have really hammered on is know exactly what these people are going to do for the next three years. So for example, I'm an attorney and I get new clients every day. I have enough clients right now to hire the people I have, but I don't know who they're going to work for tomorrow or the day after that. Matter of fact, they're ready for them and that's part of our magic.

I mean, come on in, we'll help you out. We don't have to know that I'm going to hire this guy to work on a case for a client for the next three years. And that's really where immigration hammered them. But they're really trying to catch people in that. And watch out. USCIS has a very increased budget when it comes to enforcement and more site visits than we've ever seen before.

So they may go out, turn up at your office, ask your employees if you're a company, when did this work come? And your receptionist or HR director or manager, whatever might say, "Oh, we didn't get this contract until August or October." And that might be what they use against you, so be careful.

All right. So contracts. Another big issue under the H-1B contracts. All right. So the question on the memo is, "Should an officer request the chain of contracts or legal agreements between the H-1B petitioner and third parties including the ultimate end-client and any intermediary vendors to assess the employee employer-relationship or non-speculative employment and specialty occupation," the work availability.

This is what they did before and so this was problematic for a lot of companies even where those contracts existed because they didn't want to share. So this is how this works if you don't know. So you have a staffing company that hires, trains, gets somebody ready to go then wants to put them out on the project. They go to a vendor and there are these vendor business softwares out there that say, "Hey, we got to work for whatever." They sign up their guy, they get selected. The vendor then places them through their name to an end-user, it may be a bank or a big software company or something like that.

Many of the vendors don't want to bother their end-users. The end-users don't want to be bothered by them and they don't want to share their contracts for a couple reasons. One might be that the staffing company could circumvent them. Now, you can get past that with an agreement between all three that said there'd be no circumvention, something along those lines. But they just don't want to do it and for a number of different reasons. And valid ones.

So what immigration was denying cases for is if you didn't have every one of those contracts, and there may be three or maybe four of them. So here's the answer. In support of the petition, the H-1B petitioner is not required by existing regulations to submit contracts or legal agreements between the petitioner and third-party. All right, big win. However, the petitioner must demonstrate eligibility for the benefits sought in assessing whether an employer and beneficiary have or will have an employer-employee relationship, the officer may consider any evidence provided by the petitioner including the chain of contracts or legal agreements between the petitioner and third parties.

Further, if the petitioner provides contracts or legal agreements, the officer is not precluded from evaluating that evidence in the education of other criteria. Okay. So what does that mean? You don't have to provide it, but if you do, they can evaluate it and use it against you for that reason and under other criteria. How would that work? Okay. So here's what to watch out for on that.

Look, what we kind of do, rule of thumb is if you have it give it to them, but really be careful and review it and make sure there's nothing in there. Immigration uses what I call the string in the sweater. They find something, yank on it, and it pulls off the whole sweater or destroys the entire case. Okay. So what would they do? What are some examples of that? Okay. Inconsistent job titles in the evidence could mean it's not a specialty occupation.

For example, this happened a lot as immigration become tougher and tougher. So you might have a job that's called a developer, software developer at the third-party. The vendor may say, "Hey, we're looking for architects," which is a more sophisticated developer. They may say, programmers, which is now kind of a dirty word in immigration. It shouldn't be. Not really an easy way to define what the difference between a computer programmer or the computer developer is, but immigration has decided there is such a difference.

A programmer analyst, there are all sorts of things. And so what they were kind of trying to stop, I think, is that some of the job titles may have a lower prevailing wage. That's the minimum wage for that than others. So companies wanting to have a lower prevailing wage that was going to send an employee off in a price per hour could make more money if they paid them a lower wage.

Now, that is one of the things immigration has been trying to stop that a foreign national got paid less than American. Well, just because the prevailing wage is higher or lower, doesn't mean it's less than the American. It just means they have these parameters in which they're trying to operate. What is this one pay and what does this one pay? Okay. So those are some of the things in the machinations of how that works, right?

So if those job titles are inconsistent and you provide it, then they could say this is fraudulent and it's just a basis or not. In addition to the inconsistent job titles, you might have inconsistent dates, inconsistent job duties, uncertainty about who the employer is. So employer-employee relationship is who has the right to hire, fire, supervise or pay. But if immigration believes that looking at this language that the end-user is really the employer.

And that's why they use Defensor. Defensor got thrown out, but that's what they're trying to do. And I don't think they're done doing that. We've seen this with immigration before. Cases come down and they just ignore it. And they figure, "Wait. Look, I can deny it. Who's going to take this to a federal court case?" Now, I can tell you who. There's these great guys out there. Jonathan Wasden bringing lots and lots of them out there.

If you want any information about how to sue if your case got denied, you can do that. If your case got denied prior to ITServe on any of the basis ITServe, you can go back in and get that visa. If you need help with that, give us a call at OnlineVisas.com and set up a strategy session. We can help you litigate those cases. We have some partners out there that do that sort of stuff, and we're glad to jump in and help you along those ways. But that's one of those deals. It's not gone. I mean just be wary of that. This is not going to be easy-peasy. There is definitely some nuance to that.

So next question on the memo, "May an officer deny a petition for an H-1B, non-immigrant classification on the basis that the petitioner while having identified and described the nature of the specialty occupation has not specified the beneficiaries day-to-day assignments in that role?" Remember, where we talked about that day-to-day assignment's piece from the ITServe language?

Okay, so an officer should deny a petition when the beneficiary has not established that the beneficiary will work in a specialty occupation. That's how they answer that question. It doesn't even really answer that question. What they said is, "Watch out. We're going to deny it if you're not working in a specialty occupation," instead of answering, "do you have to do day-to-day assignments?" Okay. So then after that, "we're going to deny this if you don't meet the specialty occupation sentence," they say, "while a petitioner is not required to identify the documents, beneficiary specific day-to-day assignments, the petitioner must meet all statutory regulation requirements excluding the itinerary requirement."

Okay. Binding court precedent. AAO in adopted precedent decisions in current USA policy guidelines concerning H-1B classification. So if the officer finds that a petitioner has not established by a preponderance of the evidence statutory or regulatory eligibility for the classification, the officer should articulate the basis of denying the H-1B petition. They just shouldn't use the rescinded guidance.

All right. So what does that mean? Okay. So they're using a lack of specificity in the duties to determine the petitioner has not proven that the job is what they say it is. That's what they're saying. So what does that mean? The day-to-day means that you have to tell them what your employee is going to do every day for three years. You don't have to do that. But what I think you need to do is you need to describe in detail what a given day is. What does this person typically do in their job.

You don't have to say they're going to do it this day, every day. But if you did the typical day and you get into the specificity, that's how you're going to win these cases. So in the job details. Now, we inherit a lot of the immigration cases. We inherit people that bring RFEs and stuff like that. And one of the biggest things that we see in the RFEs is that they say the job description is too vague.

And what is too vague? So when they say it's too vague, it's something like, "The beneficiary will evaluate client's technical needs. And beneficiary will design technical elements. Beneficiary will develop code." That's vague. What I think you need to do is talk about a typical day-to-day and an example. Don't say they're only going to work for this one project, but an example of the work that we do includes evaluating the ABC companies. One, two, three program to determine its applicability for its client's needs. And then design a front end or user interface to optimize the user experience using the one, two, three computer language.

I mean, that kind of stuff is what you need to do, "Developing using this particular code to build out elements of the computers application to help its clients process a particular type of thing." I mean, really you want to use layman's terms so they can understand it. So first of all, laymen are reading it, not techies. What we've seen a lot of these cases is really, really a hard computer language and in that really, really technical computer language, you get lost.

So I'm not saying you should remove computer language, you need to have it. But you need to be able to describe it to somebody that doesn't speak it. We always look at ourselves as translators. We need to understand what you are trying to do. How do we describe this in laymen terms so that somebody who doesn't have a technical background can do this, but let's include specifics like the type of the language, the name of the project or projects or types of projects, things like that. That right there I think is where a lot of it is going to be.

Non-speculative occupation work. This is a big deal for USCIS. They thought that it didn't meet it. So, "Should an officer require evidence of day-to-day assignments to establish the availability of specialty occupation work?" Now, remember we talked about this. Right in their language, the day-to-day operation. They were shot down. You cannot ask for day-to-day assignments. But they keep rolling it back in here. Okay. The answer to, "Should an officer require evidence of day-to-day assignments to establish the availability of specialty occupation despite ITServe saying, 'Nope, you can't'" is that the officer should do the petition as described by the H-1B petitioner to determine if the petitioner has met its burden of proof to establish the beneficiary will be employed in a specialty occupation, while evidence of the specific day-to-day assignments is not required to establish the position of a specialty occupation.

The petitioner may choose to provide such evidence. You don't need to, but if you do, we need to do that. So what does that mean? It means an employment letter or contract should be sufficient to describe the job. You have an agreement for the next three years that this software developer is going to work for me and here's what they're going to do. That should be that. But note, the description should be detailed and not be vague. Just as we talked about. It should list examples of projects.

You can always throw in examples of projects too. Again, what they're trying to do is... Think of USCIS folks as detectives. That's kind of how they look at themselves. They are investigating fraud, things that don't really exist. So if you're saying, we are a software company and we are developing software applications for clients, there's nothing wrong with putting in a couple of the things that you've done. So marketing materials, possibly. Some websites of some of the things you've developed. Things that you might want to redact any of your secret sauce, but to show, "Look, we've done this for a long time. Here's an example of some of it." Nothing wrong with that. A little note for you.

All right. Here's another one, "May an officer deny a petition for H-1B non-immigrant classification on the basis that the petitioner, while having identified and described the nature of the specialty occupation has not specified the petitioners day-to-day assignments in that role?"

Again, they sort of flipped it around from their last one. It's sort of the same thing. And it says, again, kind of like they did earlier. An officer should deny petition when a petitioner has not established that the beneficiary will work in a specialty occupation. And while they're not required to do the day-to-day assignments, they can do it. So what does that mean? Well, just because you do not have to provide the day-to-day assignments does not mean they will not deny you if you don't establish the jobs specialty occupation. And again, they keep counting around this.

So again, specific examples of what you've done, those sort of things. And understand that whether it's a specialty occupation, it's kind of brought on two things. It's whether or not the duties are similar to the duties that are in a database called the Occupational Outlook Handbook, the OOH.

Okay. You go to the OOH, and you look at what does a software developer do? What does a doctor do? What does a lawyer do? What does an architect do? What does a business analyst do? Any of those sorts of things in the H-1B. I don't mean to make this all tech. There are H-1Bs for anything, any job that requires a university degree. That's the second prong. So is a job similar in OOH too, your job? And does it require a degree?

We're going to get into that under specialty occupation more. So you want to look at the duties under the OOH and see if they are similar to your job. Now, here's a trick of the trade. Don't go in and copy it and put it in your employment letter, just like the OOH. They'll say that's manufactured. No job is exactly like the OOH listed. So you want to look at it and whether it has similar functions. And that's kind of the way to do that.

Don't be afraid to include some technical and language like details and complex methodologies, employed, technical tools or language used or other specifics about the process provided – you describe how they work in layman's terms. So again, this all goes back to that, their employment letter. So what do we do? We don't just take a company's job description and give it to immigration, because it may not be close enough to the OOH. It needs massaging.

Now, we want to be truthful. We're not saying we make something up out of thin air, but we look at the job description and what we do is we create a letter. A letter to immigration from the company that takes the details of the job description, looks at the OOH, looks at what you're going to do and makes sure that it discusses how it's related to a specific degree or degrees. And we'll go into degree or degrees later, that's a really big piece that immigration has been hammered on lately. They've really tried to tighten it down to one degree, which isn't the way it's supposed to be done and they've been pinged by the court.

All right. So number three, "May an officer deny an H-1B extension or change the status requests or revoke an approval if the evidence in the record established a beneficiary was benched or never worked but was still paid?" What they say, this is their answer, "Except, in certain limited circumstances, benching is prohibited by law to prevent foreign workers from unfair treatment by their employers and ensure that the job opportunities and wages of US workers are being protected."

The failure to work according to the terms and conditions of the petition approval may support among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status or both. Guidance concerning benching remains unchanged. The officer may issue a notice of intent to deny. That's called annuity or a failure to maintain the status or in orders of intent to revoke to have the visa for failure to maintain the status, they've already been approved.

All right. So lack of work may be a material change in terms of conditions for employment that could affect eligibility for H-1B visa holders. No longer being employed in capacities specified in the petition is a basis for revocation or being placed in a non-productive status or training for an extended period of time. Even paid may qualify as being no longer employed in the capacity specified in the petition. If a beneficiary is in non-productive status because of a lack of work, that could indicate that the beneficiary no longer is a specialty occupation. They kind of go there.

And they show there are some exceptions. One is the Family Medical Leave Act. So if somebody gets pregnant. They go in there, they should be protected. Or the Americans with Disabilities Act if they get hurt. So that's what they've limited it to. So they really did that. So what does that mean? So look, what a memorandum is, is USCIS policy people telling its adjudicators how to analyze something. That doesn't mean it's what the law says. That means it's how they want their people to approach it.

So we're going to hit you with an RFE if there's some time off. Well, the courts have stated, and the Department of Labor, that you can have some periods time off. It's not like if they ever take a day off or their project ends and there is a period of time that they're out of status. So it's how long is that. Now, what are the best practices? Best practices don't have anybody to take any time off. Then you don't have that issue.

What we do is risk removal. So do it the whole time or your company is doing a lot of different work, put them on something else. Do not send them home with nothing to do. Make sure they're working all the time if you can. But if you can't, there is going to be a period of time that it's going to be okay and a period of time it's not going to be okay and that is not defined.

What they're telling you is it could be and we could do that for this reason, but they're not saying you can't do it. We could do it. So what they're telling you is we want to, we're going to do it if we can but they can't tell you that you can't do it and that's what's really interesting. So think about that in that situation.

All right. The next one, itineraries. "Should an officer continue to apply the itinerary requirement under the regulations?" No is the answer. We won't go into that. And here's why, because ITServe case struck down details and itineraries that are inconsistent with the professional specialty occupation. ITServe holds it is irrational that it is arbitrary and capricious to impose the requirement of contracts and other corroborating evidence of dates and locations of temporary work assignments for three future years.

It is in fact a total contradiction of the plaintiff's business model of providing temporary IT expertise to US businesses. It would destroy a long-standing business resource without congressional action. ITServe also addressed that the itinerary is indicating a full visa term of uninterrupted work was in opposition to the 1998 ACWIA when Congress anticipated non-working periods during the term of an H-1B and move to avoid any negative impact on US employers by making foreign workers cheaper to employ.

Therefore, the itinerary requirement in the INS 1991 regulation is adopted by INS. That's what now enforced by CIS has been superseded by statute. Okay. So that answers the last question. So they're saying that there is an act 1998 ACWIA that they anticipated non-working periods. So while they said you can't bench, you actually can but not use the word bench. You don't ever use the word bench. Bench is bad, but if there is an unanticipated period of time where you're not going to work, that's okay because the federal law says you can do it and USCIS can do that.

So that's why it's really important not just to read the memo, but read the law, incite the law that is the purpose of that memo. So not just what they say it is, it's how they are interpreting what congress said. So right now, this memo, as you read it under the benching part, is in violation of the ITServe case. It just came down that they are having a new memo for it.

So that's why in our briefing process, we like to cite cases and help you understand how to do that. That's why briefs are important. That's why we brief. A lot of lawyers will just write a table of contents and let the documents speak for themselves. That means they're leaving it to immigration to interpret what these things are saying. That's not good lawyering. Good lawyering is saying, "Here's what this document means." Good lawyering is saying, "You should look at what's in your documents." We're not just going to put it in there and hope these guys do it because these guys are looking for the string to undo the sweater.

Okay. All right, next one. Limiting time periods. "May an officer limit the validity period of an approved H-1B application?" "USCIS may issue approvals for H-1B petitions," this is their answer "with validity period shorter than the time period requested by the H-1B petition. However, the decision must be accompanied by a brief explanation, a brief explanation, as to why the validity period has been limited. This includes, but is not limited to instances in which the certified LCA has a validity period shorter than the duration that's specified in the H-1B."

Okay. So if the LCA is shorter, all right, I'll buy that. But let's look at what the court actually said. ITServe case also invalidated CIS practice of granting visas for less than three years which represents a change after decades of past practice on which US employees have come to rely and which presumably remains the practice for employers in other industries. And therefore were not legitimate denials and were arbitrary and capricious and violations of the APA.

The court hammered them on the short denials and what did they just say? "We can do it. We can do it if we give a brief explanation." That is horrible advice the USCIS policy has given the USCIS adjudicators. They just said violate this case law. So that means don't just rely on the memo, rely on the case law in your briefing of these cases.

All right. So that's the memo. That's what the memo says that came out June 22nd. What's still at issue after the memo for the filing of H-1Bs in 2020? Well, specialty occupation. They touch around it, but they don't want to address it. And that's weird because there's a lot of cases that came out and they really could have, but the reason that they didn't is that they don't want to.

Specialty occupation is going to be the battleground. It's going to be the battleground of these H-1Bs in the 2020 season or 2021 fiscal year or whatever you want to call it. All right. So what that means is to be ready for H-1B RFEs on that. If you think you do not need an immigration attorney to file an H-1B and you can just stick it in as you did prior to 2016, because of the settlement, I think you're going to be in for a rough surprise.

Okay. So specialty occupation. Sort of hidden in the other categories, but it must be under the OOH. We talked about that. It must not be vain and look for denials. So how to win it? So there are two things under the OOH. One is what they do. So look at the tasks or the duties and the other is how do you become one. That's the tab of the OOH and how you become one is where the language is that says, "Does this job require a degree?" Where these battlegrounds will be fought on is going to be in the language of the OOH "how to become one." I'm telling you right now that's where the H-1B is going to be battled or one of the areas, the biggest area.

So that's how you win. So here's the case law behind it. This is really critical stuff and there's a lot of it. The first case law that came out that I really loved on this that hammered it, it was called Next Generation Technology versus Johnson. That came out in 2017. And this is where USCIS had been interpreting the OOH language in denying cases. And the court said in 2017, and this is a Southern District of New York or a big battleground area for litigation for federal courts.

"Even affording appropriate deference to the government's interpretation of the statutory and regulatory requirements, this court is at a loss to see a rational connection between the evidence indicating that most computer programmers have a bachelor's degree and USCIS's determination that computer programmers are not normally required to have a bachelor's degree." So while general degrees are not permissible for a specialty occupation, federal cases have provided clarification of USCIS's recent decisions to deny cases by interpreting the regulations in opposition to its text structure in history.

In NextGen, they said there was no rational connection where USCIS was taking the word the most needed to say that it's not normal to have it. I mean, they're just using the word "most" has been a big thing that they've been really weird about. So that was back in 2017. So a lot of them have come down in 2020. So in two separate cases on March 31st, 2020, the same judge, Judge Rudolph Contreras of the US District Court in DC issued two decisions on H-1B adjudications for a computer systems analyst. One was called Taylor Made Software versus Cuccinelli. Cuccinelli who replaced Cissna as the head of DHS.

The second was called Info Labs versus USCIS. So in these cases, the agency determined the Department of Labor's authoritative source on information about occupations, the Occupational Outlook Handbook, we just talked about it, stated that "most" of the United States workers doing this job have a degree in a specialty occupation, which is computer science, and that it was "typical." Also in quotes for United States workers to have that degree when working the field, notwithstanding the DOL's position in the OOH, the agency being USCIS or Homeland Security found it was not normal for United States workers doing the job to have a degree in the specific specialty.

Judge Contreras found the reasoning to be arbitrary and capricious. So again, it said "most" and said "typical" and they said that it wasn't normal. So those cases come back and say, "Look, if it says 'most,' that's okay. That's a requirement." So there was another District of Columbia DC Court case that came out on March 6th and that was called 3Q Digital versus Nielsen. The United States District Court entered in or invalidating the defendants, which was Nielsen was I guess the secretary at that point. The USCIS practice of avoiding expert opinions and employer evidence regarding a position and degree requirement.

I'm sorry that's a different one. It's Barchart versus Cissna. So in the DC one, they invalidated their position on the degree requirement again. Then in Barchart, that's where USCIS just ignored expert opinion and ignored subsequent employer evidence, and just like it didn't even occur.

And then there was a really interesting case called Inspection Expert Corp vs Cuccinelli. And that was in North Carolina District Court, North Carolina Federal District Court. And so USCIS attempted to interpret "normally" to be more than 70%. 70% of those working on QA. It's quality assistance or assurance engineers have at least a bachelor's degree according to the ONET statistics. It's insufficient to the extent USCIS construed "normally" to write something more than most or 70%.

It said that they erred when they do that. So what they did in the IXC case, Inspection Expert, IXC is instead of looking at the ordinary meaning of the term "normally," they defined... So they went to the court went and looked at the Oxford University Press in defining "normal or usual conditions" and the usual way in identifying synonyms, "usually, ordinarily, commonly, ordinary, in general, mostly, most of the time, more often than not and regularly." So they use that and said like that's what "most" means. Any of those words.

So it's not 70%, it's 51%. So it's a 51% role is what came out of that. So then they came and there's a couple things that I'll follow up on and I'll move on. So basically the specialty occupation and the requirement of the university degree, this is contained in case law. This is why you need to brief. And you want to show them, "Here's our job, here's the cases that say, it's okay to have that." What that does is effectively answers an RFE before one's answered and really makes it hard to deny your case. So that's what we'll do.

All right. So what's left after specialty occupation, level one wages. So level one wages are as follows. The Department of Labor issues wages, that's what a preliminary wage is. Not preliminary wage, the prevailing wage, I'm sorry. The prevailing wage is sort of like a minimum wage and it's data collected by the Department of Labor for the county and state where the job is going to be. And up until the recent administration, the current administration, you just had to be over the prevailing wage. There was no discussion of the levels.

So what came out a couple of years ago, really it came out in a memo, the day before the visas were all due. They said they were going to look at this, the prevailing wages in level one. And so they started denying a lot of these ones. So that's not gone. And we think that the wages of employees is going to be a battleground because there are so many unemployed Americans.

So the argument that people that are against H-1Bs and against merit-based immigration are saying " are these people going to be paid less than Americans." So even though there's a prevailing wage, they're going to use level one as the thing to do. Now, you can still get level one's approved. We can go into that. There's a way, it's just you have to understand what level one means.

So basically, level one is an entry-level position under a memo by the Department of Labor. So we often will go into that memo and show them what it is. We also make the argument that another federal officer has already determined that they met the prevailing wage and that's why they certified the prevailing wage request and they certified the LCA... Not the prevailing wage you request, they certified the LCA because that's put in there.

So for a level one, the experience requirement is zero. The educational requirement is a minimum requirement, bachelor's degree or higher and the specialist skills are zero. So where does it come in to be a problem, if you have that? Well, in your job description, if that entry-level person is overseeing anybody else then it's not entry-level. Level three is going to be in a senior or a managerial level of whatever position it is.

So if you're trying to bring in a managerial level person, you put them at level one. That's a killer. So you want to make that either a level three or a level four. That's really where it's going to be. So you have to look at the chart. There's a chart that's on there and in that chart it's called the employment and training administration prevailing wage determination policy guidelines revised November 2019, and it's on pages 14 and 16 of that. And it's that chart where you can kind of see whether they're a level one, two, three, and four looking at a series of things.

That's what DOL uses when they certify an LCA. So understanding how that chart works is really important and then you look at that and you plug that in and that can help you win the level one. But beware because in the ban, before the ban, we talked to a lot of lobbyists and other people discussing it, one of the things they didn't put in the ban that they wanted to was to allow level one. But only allow it for a couple years. So be aware of the requirements coming down that they've asked DOL and Homeland Security to put together. They being the White House, on what happens.

You might see an increase in level one. You might see lower visas for level one. But be wary of denials for level ones in jobs that are more sophisticated than an entry-level position. So what we do is we make sure that if we have a level one employee, that they are under the supervision of a superior officer. So you really have to have supervision. It has to be in the employment letter and it has to be in the way that the company deals with that person. And it's a little tricky if your company is supervising somebody that's in a location someplace else and the supervisor is not there. So how do you prove that? Through communication and other things. So the devil is in the details there, folks. So look at that.

Okay. So we're moving on. This is dealing with the cases, the settlement in a memo or a few of the series of things that have impacted the H-1B visa. And we may be carving this video up. So we're going to continue on. If you're watching an abbreviated visa, you might go to the OnlineVisas YouTube channel and look at the other ones. So we're going to move on. So the next one is the impact of COVID-19 pandemic on the filing of H-1B visas.

All right. There are a couple of things, delays and extensions, change of status filings. So USCIS has some COVID-19 sites and they say things like Homeland Security recognizes there's an immigration-related challenges as a direct result of the coronavirus pandemic and they continue to analyze things. They know you must depart when your visa expires. But again we talked about it. What if you got furloughed or what if you're terminated and those sorts of things?

You're going to have 60 days now under a rule that came out in the last three days of the Obama administration. 60 days to file for another case. You might be able to be laid off or furloughed for a little bit and go back to your company. A lot of this we don't really know how it is going to go until you try it. And so if you were furloughed because of COVID-19, make sure that there's a letter from your employer that says the furlough or the temporary suspension or even a reduction in salary was because of COVID-19.

And then it'll be a special circumstance that you can put in with your case when you go for the next thing. So the question is, if somebody is fired and they are being rehired by the same company, do they need to file a new H-1B with that company? Well, it's unknown. They may attempt to say, I was just put down there and they may cite that case we talked about or I'm sorry, that statute we talked about that people don't have to work all the time that was in the ITServe Alliance case, cited from there to say, "That we were out of work for a little bit, but now we're back and we're out of work because of COVID-19. Look at this letter and say, 'We're good.'" Or file a new case if you feel that you need to be safe about that and go forward like that.

If you file that new case within the 60 days, then they're not out of status. They don't need to leave out of the country and they can come back in. So that might be the best practice. It costs a little bit more money filing fees and stuff like that, but that's something you can do. So applying for an extension, filing in a timely manner, flexibility for late applications are all things that come under the special situations and in special situations can include COVID-19, but they're going to require you to play it.

It also brings in the issue of public charge. And the public charge is also one of those things that have happened since last time we filed H-1B a year ago and they're in the new I-129 is a public charge section whether you've ever received state or federal aid? And if you have, you can be denied a visa. So there is receiving unemployment because of COVID-19 is now a possibility.

And in that public charge issues of receiving unemployment by USCIS, they have a for example. If an alien, foreign national. I hate the word alien, is prevented from working or attending school and must rely on public benefits for the duration of the COVID-19 outbreak in the recovery phase, the alien can provide an explanation and relevant supporting documentation to the extent relevant and credible. USCIS will take such evidence into consideration in the totality of the alien circumstances.

Okay. They're not saying that for sure you can do this, but we are willing to take it into consideration on a case-by-case basis. So be careful. You don't have to do it. Maybe you don't do it. But look, if you lost your job, that's what it's for. Another thing that you can do for sure is to receive the stimulus check. The stimulus check is looked as a benefit and it's not a public charge thing.

So we've come to the end of our almost hour-long video. I'm Jon Velie. I'm the CEO of OnlineVisas. Please go to our YouTube channel and like, and share, and subscribe, leave comments. Go to OnlineVisas.com, ask for a strategy session with us. Glad to talk to you about your situation.

OnlineVisas has developed an AI aided, visa building, cloud-based platform with these types of arguments that have helped us build cases faster and better. I'm Jon Velie, CEO of OnlineVisas and we're delivering dreams one visa at a time. Take care.