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AILA Comment on I-129W & H Supplement

Cite as "AILA InfoNet Doc. No. 00053002 (posted May. 30, 2000)"

INS Proposes Change in I-129 H Supplement 4/11/00 1:00:00 PM
INS seeks to revise the H Supplement to Form I-129. Comments are due 5/30/00. See Federal Register notice [65 FR 17309, 3/31/00].

May 30, 2000

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
Immigration and Naturalization Service
425 Eye St. NW, Room 5307
Washington, DC  20536

Re:  Agency Information Collection Activities, 65 Federal Register 17309, Petition for Nonimmigrant Worker; and 65 Federal Register 17309-10, H-1B Data Collection and Filing Fee Exemption

Dear Mr. Sloan:

The following are the comments of the American Immigration Lawyers Association (AILA) to the proposed revisions to Form I-129 and to the extension of Form I-129W.

AILA is the bar association of more than 6,000 attorneys and law professors who practice and teach in the field of immigration and nationality law.  AILA members represent persons, entities and businesses across the immigration spectrum, as well as teach and advocate on all fronts involving immigration issues.  AILA’s membership undoubtedly comprises the single largest group that must regularly address Forms I-129 and I-129W, and thus have extensive experience with their preparation and use.

We note that the only proposed change to Form I-129 is in the H supplement.  The rest of the form, including the instructions, remains unchanged.  Therefore, our comments relate only to the H supplement (and not to the supplement forms for other visa types), and only touch on related aspects of the Form I-129 itself.

We further note that much of the Form I-129W is duplicated verbatim on the proposed H supplement.  For this reason, we are commenting on both forms in one document.

STATUTORY REQUIREMENTS FOR ANNUAL REPORT

Section 416(c)(2) of the American Competitiveness and Workforce Improvement Act of 1998  (“ACWIA”) directs the attorney general to submit to the Committees on the Judiciary information on the countries of origin and occupations of,  educational levels attained by, and compensation paid to, aliens who were issued visas or otherwise provided nonimmigrant status under INA §101(a)(15)(H)(1)(b).  ACWIA §416(c)(3) directs the attorney general to specify the number of H-1B aliens granted status pursuant to petitions filed by INA §212(p)(1) organizations. It would appear that the new information requested on the H supplement, and the information requested in Part A of Form I-129W, are intended to gather information to make these reports.

Country of Origin Information

AILA is concerned that Form I-129, as currently in use and unchanged in the proposal, will by its nature collect inaccurate information regarding country of origin.  Form I-129 requests information on the country of  birth.  It is possible, and indeed probable, that “country of birth” is what Congress meant by “country of origin.”   However, it is also possible that “country of citizenship” was intended.  In any event, the form as currently constructed will result in data that mixes country of citizenship and country of birth, and thus will arrive at an inaccurate conclusion.

This problem arises from the fact that Notices of Action approving nonimmigrant status include a line for country of citizenship, not for country of birth.  Conversely, Form I-129 requests information on country of birth, but not on country of citizenship.  It appears that INS software extracts information contained in the country of birth field and prints it on the Notice of Action as the country of citizenship.  For many aliens, the country of birth differs from the country of citizenship.  In such cases, approval notices are routinely issued that incorrectly reflect the individual’s country of birth as his or her country of citizenship.  Many, but not all, petitioners have learned to account for this error by entering the country of citizenship into the country of birth field, in order to ensure that the Notice of Action will be correct.  The result is that INS receives country of birth information from some petitions, and country of citizenship information from others, in answer to the same question.  This endangers the quality and clarity of the information to be collected.  We therefore recommend that Form I-129 be amended to include fields for both Country of Birth and Country of Citizenship, thereby enabling INS to accurately track this information for all aliens.

We further recommend that the INS develop standard abbreviation codes to be placed in the Country of Birth and Country of Citizenship fields.  These standard codes should be included in the instructions to the Form I-129.  Adopting standard abbreviation codes will minimize the likelihood of the INS incorrectly interpreting an abbreviation created by the preparer of the form to fit in the available space.

Occupation Information

The proposed H-classification supplement requests sufficient occupational information if the INS determines that the first three Dictionary of Occupational Titles digits define an occupation.  Otherwise, the proposed form should be amended to request the entire Dictionary of Occupation Titles code or some other job classification code. 

Education Information

The “highest degree earned by alien” question on the Supplement form should allow for the equivalencies currently defined under statute and regulation.  Forcing INS to collate separate information between beneficiaries who hold a baccalaureate degree and those who hold the equivalent of a baccalaureate degree provides no practical utility.  Existing INS regulations allow H-1B status to be conferred upon beneficiaries who either possess either a baccalaureate degree or its equivalent.  8 CFR sec. 214.2(h)(4)(iii)(C)(4) (2000).  An H-1B beneficiary can demonstrate that s/he possesses the equivalent of the degree required for the position through “a combination of education, specialized training, and/or work experience in areas related to the specialty….”  8 CFR sec. 214.2(h)(4)(iii)(D)(5) (2000).  However, Question 2 of Section 1 of the proposed form forces petitioning U.S. employers to check differing boxes: one box for H-1B beneficiaries who hold baccalaureate degrees, and a different box for H-1B beneficiaries who have no degree, but have earned the equivalent of such a degree through years of progressively responsible experience in the specialty occupation field. 

For example, a foreign professional who holds 20 years of progressively responsible specialized work experience as a Database Administrator is just as eligible for H-1B status as a Database Administrator as someone who earned a baccalaureate degree in Computer Science.  However, if that foreign professional “merely” holds a high school diploma, the H-1B petitioner is required to check Box 2.b [high school diploma], rather than Box 2.f [bachelor’s degree] on the proposed Form I-129 Supplement H.  The INS proffers no reason why a petitioning employer should not be able to indicate that the H-1B beneficiary holds the equivalent of a bachelor’s degree on the Section 1, Question 2, of the proposed Form I-129 Supplement H.  It is therefore impossible to determine the practical utility of distinguishing between these two types of H-1B professionals.

Initial experience with the I-129W bears this out.  Petitioners who have check b—high school graduate—have reported that their I-129W forms have been returned as incomplete because the “Major Field of Study” question was not completed.  Since high school education does not involve a major field of study, it is apparent that the college equivalency field of study is intended by this question.  If the field of study for the equivalency is intended, the equivalency itself must also be intended.

For purposes of completing an H-1B petition the petitioner should be able to indicate that the beneficiary of an H-1B petition holds the equivalent of a baccalaureate degree.  The INS has identified no practical utility to be gained by separating those who have actually earned a baccalaureate degree from an academic institution, and those who have earned the equivalent of such a degree (per existing INS regulations).  Either class of individuals is equally eligible for H-1B status.  Therefore, allowing H-1B petitioners to treat equally those who hold baccalaureate degrees and those who hold the equivalent of baccalaureate degrees, would enhance the quality, utility, and clarity of the information to be collected by INS.  Toward that end, H-1B petitioners should be allowed to check the same box (to wit, box 2.f) of proposed Section 1 for those who hold the INS-recognized equivalent of baccalaureate degrees, as well as those who hold an actual baccalaureate degree.

Compensation Information

Inclusion of this item on the H supplement raises a number of issues.  First, it should be noted that salary information is required on the main I-129 form, as well as on the Labor Condition Application that is submitted with the petition.  The proposed revision to the H supplement requires this information yet a third time, imposing an undue burden on petitioners.

This burden is exacerbated by the manner in which the salary is to be presented.  The H supplement requires that the salary be expressed differently than in the other two representations included in the same filing.  The Department of Labor (“DOL”) has a lengthy set of regulations defining what does and does not constitute compensation for H-1B required wage purposes.  To avoid unnecessary burdens on employers, INS should require the same wage information as DOL, rather than introduce yet another confusing formula for describing compensation and thereby increase the burden on employers.

Number of aliens approved under fee exemptions

ACWIA §416(C)(3) directs the attorney general to specify the number of H-1B aliens granted status pursuant to petitions filed by INA §212(p)(1) organizations.  This raises issues similar in kind to those raised by the requirement to count the number of aliens granted H-1B status, discussed below.  But the two are not exactly the same.  The INS should never count a second H-1B alien toward the quota when the petitioner seeks to extend the H-1B.  However, an INA § 212(p)(1) organization should be counted when seeking an extension if the H-1B alien does not already work for an INA §212(p)(1) organization.  The proposed H-classification supplement asks whether the petitioning organization is a §212(p)(1) organization.  It should consider adding a question as to whether the H-1B alien already works for a §212(p)(1) organization.  This would allow the INS to count another §212(p)(1) organization where the H-1B alien does not already work for a §212(p)(1) organization.

Counting of Aliens Accorded H-1B Status

ACWIA sections 416(a) and (b) instruct the attorney general to ensure an accurate count of the number of aliens subject to the numerical limitations on aliens issued H-1B visas or otherwise provided such status, and to revise the petition forms to achieve an accurate count.  Unfortunately, the forms as proposed do not achieve this end.  To comply with Congress’ mandate, Question 1d of the H Supplement should be modified to read: “ Has the alien been in H-1B status at any time during the six years immediately preceding the proposed start date of the petition?”

INS has decided  that an H-1B  petition approval is not subject to the cap in four circumstances: (1) where there is sequential H-1B employment; (2) where there is concurrent employment with two H-1B employers; (3) for an extension of stay with the current employer; or (4) where an amended petition is filed for a change in the conditions of employment with the same employer.  The “sequential” case has been illustrated  as where “an H-1B chemist completes his or her assignment with ‘Company A’ and then assumes a new position the very next day as an H-1B chemist with ‘Company B.’”  Meissner Notice, 63 Fed.Reg.25870 (May 11, 1998).

Presumably, the reasoning behind INS’ conclusion that each of these four additional H-1B petitions is not  subject to the cap is that the beneficiary has already had one approval counted under the cap and that one time is enough. The same reasoning, AILA submits, should be applied to any case in which an H-1B beneficiary’s approval has been previously counted.   For example, if sequential switching from employer A to employer B without a gap in time is to be outside of the count, such switching from employer A to employer B with, for example, a two month gap should be equally outside of the cap count.  That alien already has been counted.  If an objection is raised that the beneficiary has (let us assume) fallen out of status during the two months, the response is that consular processing would be required. But there is no logic in “punishing” the out of status two month gap by shifting the case from the non-cap to cap category.

Nor should it matter whether the previous employment with employer A (subject to the cap) occurred in the same fiscal year or in previous fiscal years within the six year maximum period of stay under H-1B status. INS has already decided that where an employee works for an employer for three years in H status and the employer petitions to extend the stay for three more years, the second petition is not covered by the cap. If this renewed H employment with the same employer, or if immediate sequential employment with a second employer, is not counted under the cap, employment a few months or years later (within the six year maximum for H-1Bs) should be treated the same way.

To achieve this consistency in treatment, INS must revise the Supplement H form to provide the needed information of prior employment in H status during the previous six years. Arguably, question one of the Supplement already calls for this information or can be revised to do so. AILA urges a revision of the form to include the name of the previous employer, the receipt number of the petition approval, the dates in which H status existed, and any other information needed to apply a broader definition of “sequential” employment.

The proposed question in Section 1d asking whether the beneficiary has been in H-1B status “during the calendar year” immediately preceding the proposed start date of the petition provides no useful information.   If  an H-1B beneficiary’s case falls under the cap and uses a number, subsequent cases involving the same beneficiary during the six-year maximum period should not be counted again toward the cap.

REQUIREMENT THAT BENEFICIARY SIGN THE PETITION

The proposed H-1B supplement sheet contains an unprecedented, unnecessary, burdensome, and duplicative new requirement:  the H-1B beneficiary’s signature.  This signature is meant as the beneficiary’s certification that “all information relating” to the beneficiary is “true and correct”.  The INS has provided no explanation as to what end the beneficiary’s signature would be used, or why it should be necessary when the State Department already poses a similar question to H-1B petition beneficiaries when they apply for their actual H-1B visas.  This burdensome new requirement would impose an unworkable logistical problem for petitioners, resulting in significant delays in H-1B petition preparation.

The question is unduly vague, doing nothing to enhance the quality, utility, and clarity of the information to be collectedThe proposed new question requires that H-1B beneficiaries certify under penalty that “all information relating to” them is “true and correct”.  Not only is the beneficiary to be responsible for “all information” listed on the I-129 petition itself, but also “the evidence submitted with [sic] it.”  (Although the language of the question is confusingly worded, AILA can only presume the “it” described by the question is the H-1B petition itself.)  The proposed question does not ask the more specific question of whether any information provided by the beneficiary to the petitioner was fraudulently obtained or legitimate.  No H-1B beneficiary is in a position to determine whether “all information relating to” him or her is true or correct.  Because all I-129 petitions directly relate to the beneficiary, virtually all information contained on the I-129 can be stated to “relate to” them, regardless of whether the beneficiary is in a realistic position to verify the information.

For example, the salary listed on an H-1B petition relates to the beneficiary.  However, the beneficiary cannot be expected to determine whether that salary meets the prevailing wage requirements for the metropolitan statistical area in which the beneficiary will work.  If the petitioner either falsely or incorrectly describes that the salary is within the prevailing wage, is the beneficiary now to be subject to prosecution for perjury?

An even more direct connection would relate to the beneficiary’s academic credentials.  Certainly a beneficiary knows whether he or she obtained a baccalaureate degree from a university outside the United States.  However, if the INS should disagree with an H-1B petitioner’s contention that the beneficiary’s foreign degree is equivalent to a similar degree earned from a U.S. institution, would the beneficiary then have committed perjury, because evidence submitted with the H-1B petition was deemed incorrect?

It is an unavoidable part of the H-1B petition process that certain statements relating to a beneficiary require subjective judgments.  Whether or not a beneficiary’s foreign degree is equivalent to a U.S. degree is a judgment call, and beneficiaries should not be threatened with perjury if the INS should disagree with the conclusion reached by the foreign credentials evaluator retained by the petitioner.  It is also a judgment call as to whether or not a beneficiary’s prior work experience was directly related to his or her occupational specialty, and therefore should be counted as equivalent to academic experience in a specialized field.  Beneficiaries should not be threatened with perjury charges simply because an INS examiner reaches a different judgment, and concludes that the beneficiary was “incorrect” as to whether the prior work experience was relevant.

Requiring a beneficiary’s signature is unduly burdensome, and the INS has not provided an accurate estimate of the time burdens imposed upon petitioners by the proposed collection of informationThe very process of obtaining a beneficiary’s signature would slow H-1B petition preparation times dramatically.  The logistics of getting an H-1B beneficiary to affix his or her name to a completed H-1B petition is unduly slow and costly.  This is because H-1B beneficiaries are often half-way around the world from the U.S. petitioner.  Simply acquiring the beneficiary’s signature would require the use of an overnight courier (e.g., FedEx, DHL, etc.) to ship the entire H-1B petition to the beneficiary’s residence abroad.  Depending upon where in the world the package is to be shipped, the cost of such a shipment – one way – often exceeds $50.

If a company wishes to file a petition on behalf of a foreign worker who resides in, say, India, or China, or Zimbabwe, it would literally take days for even the fastest airborne couriers to ship a complete H-1B petition package to the beneficiary. Once the beneficiary received the package, the beneficiary would have to spend at least some time reviewing the entire H-1B petition package, and all evidence to be submitted with the petition.  It is hard to estimate exactly how much time a beneficiary would need to review and verify an entire H-1B petition (and all supplemental evidence to be submitted).  However, given that the beneficiary faces a potential perjury charge for signing off on a form INS may later deem to contain “incorrect” information, it is reasonable to assume a beneficiary will not sign off without a thorough – and necessarily time-consuming – review.

Once that review is complete, the beneficiary must then figure out a way to ship the package back to the United States petitioner.  Assuming the beneficiary has equal access to the sorts of international “overnight” courier services available to U.S. employers, the package will still take a number of days to return to the United States.  Assuming the beneficiary does not have access to such private international “overnight” courier services, or cannot afford to use such services, then the return of the H-1B petition to the employer will take much more time.  Depending upon the reliability of the overnight service used, it is predictable that some packages will be lost en route from one end of the globe to another.  Should this happen, at least some employers will find their entire H-1B petition gone, and will have to re-prepare a new petition from scratch.  As the very purpose of the H-1B visa category is to allow U.S. employers to quickly fill a temporary position, it is inconceivable that the practical utility INS hopes to gain (if any) is justified by the enormous burden such a signature requirement places upon petitioning employers.

Requiring a beneficiary’s signature to address fraud concerns is redundantAILA recognizes that eliminating fraud is a concern held by the INS.  However, to the extent that requiring an H-1B beneficiary’s signature and certification would address those concerns, they are already adequately addressed under current procedures.  Under current H-1B procedures, H-1B beneficiaries are already asked this question when applying for H-1B visas at U.S. consulates abroad. 

Specifically, the form used by H-1B petition beneficiaries to obtain their H-1B visas is the State Department OF-156.  Question 29 on Form OF-156 poses the question to all who wish to apply for a visa:  “Have you ever … sought to obtain a visa or any U.S. Immigration benefit by fraud or willful misrepresentation?”  Not only is this question much more specifically worded, thereby removing the “vagueness” concerns listed above, but the visa application process is already required of H-1B visa applicants.  The INS have provided no explanation why the pre-existing check on fraud concerns must now be duplicated under much more burdensome circumstances.

The requirement for the beneficiary’s signature does not fulfill the mission set forth by Congress in ACWIA.  Plainly, the impetus behind promulgation of this amended form is compliance with the directive in section 416(b) of ACWIA to revise the H-1B forms to permit the attorney general to accurately count the number of aliens subject to the cap.  The only way that the beneficiary’s signature could advance this goal is ignored in the proposed form.  One of the greatest sources of inaccuracy in the INS’ method of counting H-1Bs by counting petitions instead of aliens is the multiple counting of aliens for whom multiple petitions have been filed by multiple employers, often around the same time.  Thus, the only true utility of a beneficiary’s signature would be if it were to be directly attached to the question about whether the alien has ever been in H-1B status, as discussed above, and attached to a question asking whether any other petitions—and how many—are being filed on the beneficiary’s behalf.  By failing to properly ask these questions, and failing to relate the signature to these questions, the proposed requirement of the beneficiary’s signature has no practical utility and requires a tremendous burden with no resulting benefit in the performance of INS’ duty under ACWIA.

INFORMATION REGARDING DEPENDENCY

The proposed Supplement H to Form I-129 asks the following questions in Section 1.1 General Information:

  1. Is the petitioner a dependent employer?

  2. Has the petitioner ever been found to be a willful violator? 

  3. Is the alien an exempt H-1B nonimmigrant? 

  1. If yes, is it because the alien’s annual rate of pay is equal to at least $60,000?

  2. Or is it because the alien has a master’s or higher degree in a specialty related to the employment?

Outside Scope of Statute and Contrary to Legislative History

 Section 212(n) of the Immigration and Nationality Act (“INA”) sets forth employers’ obligation to file a labor condition application (“LCA”) with the Department of Labor (“DOL”) prior to filing an H-1B petition.  When the LCA was introduced as an additional element of the H-1B process in the Immigration Act of 1990 (“IMMACT 90”), the LCA was viewed by Congress as an attestation driven document allowing for prompt adjudication, with a complaint and investigation mechanism controlled by the DOL.  A clear mandate of IMMACT 90 was to ensure an efficient and speedy process to allow entry of urgently needed H-1B workers while providing appropriate protections to U.S. workers.

ACWIA introduced the terms “H-1B dependent employer,” “willful violator” and “exempt H-1B nonimmigrant” in the context of modifying the labor condition attestation requirements of §212(n).  ACWIA is void of any language or legislative history that suggests a Congressional intent to overhaul the self-executing attestation system created in IMMACT 90.  Moreover, the statute and legislative history do not indicate congressional intent to minimize the DOL’s oversight or to provide the INS with any role in the LCA process.  Consistent with the scheme established in IMMACT 90, ACWIA does not provide the INS with any additional resources to adjudicate attestations made on LCAs.  Thus, AILA believes that the foregoing questions are ultra vires and completely outside the jurisdiction of the INS under IMMACT 90 and ACWIA. 

H-1B Dependent Employer

For similar reasons, the INS’ adjudication of whether an employer is “H-1B dependent” is ultra vires and without basis in the statute or legislative history.  Such review of representations made by an employer on an LCA is also unprecedented and is contrary to the nature of the LCA as an employer attestation document, enforceable upon proper complaint through DOL investigation.  The impropriety of mandating response to question 1 a is particularly apparent, given that an adequate definition of the term H-1B dependent employer has not been provided in regulations by any agency.  As the lengthy treatment of the topic in the DOL proposed LCA regulations under ACWIA demonstrate, the concept of “H-1B dependency” is complicated.  Thus, without an adequate regulatory definition, it is virtually impossible for employers to provide an appropriate response. 

For example, the definition of an “employer” for purposes of the H-1B program is significant but not yet clearly defined.  ACWIA provides that any group that constitutes a “single employer” under complex Internal Revenue Code provisions governing employee benefit plans shall be treated as a single employer for purposes of ascertaining H-1B dependent status.  Moreover, in some as yet undefined circumstances, employees of third-party contractors working at a job site are to be included in the H-1B dependency calculation; yet in other undefined instances, such employees are excluded from the calculation.  Moreover, the DOL has proposed that the single employer concept should be utilized for all purposes under the H-1B program.  Thus, employers cannot in fairness be asked to respond to a question about H-1B dependent status until final regulations have been issued to define this term.

Furthermore, ACWIA generally defines an H-1B employer as dependent if 15 percent of the U.S. workforce is on an H-1B visa.  The statute defines “dependent” in terms of the ratio of H-1B to full time equivalent employees (“FTE”).  The DOL’s proposed regulations contain a confusing formula for converting part-time workers to full-time and for calculating the ratio of H-1B to FTE workers.  Moreover, the DOL has proposed that bona fide consultants and independent contractors who meet the common law employment relationship test be included in this count.  At this time, final regulations have not been issued to clarify who is counted, when the calculation takes place and what records are required.   

By including the question regarding H-1B dependency for all H-1B petitioners, the INS also overlooks that fact that ACWIA does not require an employer to make these attestations on LCAs for exempt H-1B nonimmigrants who possess a master’s degree in the field of intended employment or who earn over $60,000 in annual wages.[1]  Pursuant to the clear language of ACWIA, an H-1B employer is not required to confirm dependency status for exempt H-1B workers.  Thus, the INS should not burden all employers with this additional obligation when filing the H-1B petition.

Willful Violator

ACWIA contemplates that the DOL will determine whether an employer is a “willful violator” under the statute and will inform the INS of this determination.  Therefore, we believe that it is an inappropriate circumvention of the statute for the INS to request this information on the Form I-129.

The statute defines “willful violator” as an employer who is found by the DOL, on or after the date of enactment, to have committed a willful failure or misrepresentation of material fact on an LCA.  Willfulness, however, is defined to include mere recklessness – a distortion of language by the DOL that has not yet been tested in the courts.  Given that final regulations have not been issued by the DOL to address this issue, the definition of this term is still uncertain.  The DOL must still clarify the types of actions that may lead to a finding that a “willful” violation has been committed.

“Exempt” H-1B worker

The INS’ adjudication of whether an H-1B worker is “exempt” is also ultra vires and without basis in the statute or legislative history.  ACWIA clearly authorizes the DOL, rather than the INS to determine exempt status.  Significantly, ACWIA does not require that, in the case of an H-1B dependent employer, an individual is approved or adjudicated as exempt prior to entering on an H-1B visa.  In fact, the statute does not grant either the INS or the DOL the authority to prevent approval of a visa on the basis of whether an individual qualifies as exempt.

ACWIA defines as an exempt H-1B employee an H-1B worker who “receives wages (including cash bonuses and similar compensation)” of $60,000 or more annually or who “has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.”  This definition is unclear, however, in the absence of implementing regulations.  For example, are benefits to be included as “similar compensation” in the calculation of wages?  If so, how will the value of the benefits be determined? Moreover, what training will INS adjudicators be given to understand how to value benefits in monetary terms?

Similarly, it is not clear whether work-experience equivalencies will be accepted to determine whether an employee possesses the equivalent of a Master’s degree in a specialty related to the intended employment.  The DOL announces in its proposed rule that in determining whether an employee possesses a Master’s degree for the purpose of assessing whether the employee is exempt, INS and DOL will not accept work experience equivalencies.  In contrast, the INS allows work experience to be equated to a Master’s degree for the H-1B visa.  Specifically, INS regulations state that the equivalent of a Master’s degree may be obtained through a combination of education and work experience, and that for this purpose a Bachelor’s degree plus five years of experience is equal to a Master’s degree.

These differing standards will result in confusion and improper denials by the INS.  For example, if a worker on behalf of whom an H-1B petition is filed possesses a Bachelor’s degree in a field related to the specialty occupation at issue and also possesses a superfluous Master’s degree, the entire petition may be denied if the INS determines that the Master’s degree is not in a specialty related to the intended employment.

Moreover, this unmandated and unfunded delegation of authority to the INS to determine whether a particular H-1B nonimmigrant is exempt will prove procedurally unwieldy and remote in time from the actual filing of the LCA.  By requiring an INS officer to re-evaluate attestations on the LCA in connection with each H-1B petition, an employer conceivably could obtain an approved LCA for an exempt H-1B nonimmigrant and file the H-1B petition with the INS, only to have the INS – perhaps months later – determine that it does not agree with the employer’s assessment of whether the employee is exempt. 

At this point, the employer would have two choices: the employer could either rebut the finding of the INS, or begin the entire process again by filing a new LCA.  Given that there frequently are delays in H-1B processing at the various service centers around the country, the determination of whether the employee is exempt could be so remote in time from the employer’s initial assessment that there may be new circumstances, such as salary adjustments, that would change the classification of an H-1B worker from non-exempt to exempt, or vice versa. 

Moreover, the adjudication by the INS of whether an H-1B nonimmigrant is exempt would add considerable delay to the processing of  H-1B petitions and would be contrary to the first and foremost intent of ACWIA – to ameliorate the short-term shortage of qualified professionals.  Currently, INS examiners must review several factors in adjudicating H-1B petitions, including whether the individual has a baccalaureate or equivalent, whether the degree is related to the specialty occupation, and whether the degree is a standard minimum job requirement for the occupation.  With the addition of the determination of whether an employee is “exempt,” the INS must delve into new areas of inquiry, areas wherein the standards may not be entirely consistent with the typical standards for H-1B adjudication. 

Moreover, as a practical matter, the INS simply lacks the resources to make two separate adjudications on each H-1B petition.  That ACWIA did not intend to create an additional burden on the Service is clearly evidenced by the absence of such discussion in the statute or in the managers’ reports, as well as the lack of any resource allocation by Congress to INS to perform this burdensome task.[2]

PAPERWORK REDUCTION ACT AND BURDENS

The Paperwork Reduction Act (“PRA”), 44 U.S.C. § 3501 et seq., requires a government agency to make an accurate estimate of the burden the agency’s regulations are likely to impose on the public.  The agency must consider why particular information is necessary in order to implement a legislative provision, and require the minimum information necessary to carry out its mandate.  If the agency fails to comply with the provisions of the PRA, the Office of Management and Budget (“OMB”) has the duty to require compliance before it may approve the collection of the information.  Similarly, Presidential Executive Order 12866 (issued September 30, 1993, published at 58 Fed. Reg. 51735, Oct. 4, 1993) instructs federal agencies to minimize the burden on the public, including the business community, to the maximum extent feasible when regulations implementing legislation are promulgated.

We believe the INS severely underestimates the additional burden on H-1B employers that will result from the implementation of its proposed Form I-129 and, as a result, has failed to satisfy the requirements of the PRA.  The INS estimates that it will take employers one hour and 55 minutes to complete the Form I-129.  This estimate apparently includes both the Form I-129 and the H Supplement.  Significantly, this is the same time estimate that was made by the INS for the version of the Form I-129 proposed on November 20, 1996, well before the passage of ACWIA.[3]  As discussed below, experience has borne out that this earlier estimate considerably understates the actual burden.

Given the length and complexity of the proposed Form I-129 and H Supplement, including the requirement that employers make the complex and time consuming H-1B dependency calculation on the proposed H Supplement, the requirement for the beneficiary’s signature and the duplication of information between Form I-129W and the H supplment, the INS has clearly underestimated the time that would be required to complete these proposed forms.  Moreover, in making this time estimate, the INS has failed to consider that the burden for determining dependency will not remain consistent, but will increase with each subsequent petition filed by an employer, as more data must be considered to make the calculation.  Frequent delays in processing H-1B petitions will also force employers to make this calculation twice for each H-1B employee – when the LCA is filed and when the H-1B petition is filed.

As mentioned above, the burden estimate, even as stated in the 1996 publication of the form, is inaccurate.  Completion of the form itself is only a small part of the H-1B petition.  The INS petition also requires documentation of the content of the job offered by the employer and of the beneficiary’s qualifications.  Further, INS adjudicators have de facto increased the burden over the last year by adding new “requirements” not reflected in the form or in the regulations.  One new requirement, generally imposed upon small businesses, is that the employer prove that the job offer is bona fide.  This paperwork requirement takes the form of a “request for evidence” from the adjudicator demanding that the employer produce a laundry list of often obscure documentation, ranging from communications between the company and its incorporator to a copy of the company’s fire escape plan.  Also, adjudicators have been demanding unprecedented levels of evidence that the job requires a degree.  Particularly for small businesses, the employer’s own representation of the content of the job is not enough—the employer must produce third party documentation that the degree is required, a requirement that involves many hours of additional paperwork.

Leaving aside for the moment the new requirements of the proposed changes, the paperwork burden of the petition itself and the accompanying required documentation is closer to six hours per petition for larger companies, and for smaller businesses from whom extensive additional documentation often is required, the burden can be close to 20 hours or more.

We must then add to these estimates the burdens imposed by the proposed changes, which as discussed above are significant.  AILA believes that the INS must provide a more accurate and reasonable estimate of the burden created by the H Supplement, using reliable data and computation.  Should the INS be unable to provide such reasonable estimate due to insufficiency of available data, we urge the agency to refrain from adopting the proposed Form I-129 until such time as a reasonable estimate is obtained.  Finally, should the INS fail to provide a more reasonable estimate of the burden imposed, we urge the OMB to intervene and to require the DOL’s compliance with the PRA as well as with the Administrative Procedure Act (“APA”).

DUPLICATION OF INFORMATION

Items 2 through 7 of the proposed amended H supplement exactly duplicate the questions on Form I-129W.  AILA urges that the Form I-129W be eliminated altogether, since it will be an entirely gratuitous instrument once the H supplement as amended takes effect.

OTHER H STATUSES

H-3 Status

No changes to the I-129H Supplement, Section 4, relating to the H-3 classification were proposed.  However, there are several types of H-3 classifications available under the regulations at 8 CFR sec. 214.2(h)(7)(i) for which no provision is made under the I-129H Supplement, nor is any mention of them made in the Instructions for the form I-129.   Two types of H-3 classification for which no provision is made in the new Form I-129H Supplement or the Instructions are for (i) Externs, available to medical students training abroad, if the alien is coming to the U.S. to engage in employment as an extern at a hospital approved by the American Medical Association or the American Osteopathic Association for either an internship or residency program; and (ii) Nurses, available to nurses who are not in H-1 status if it can be established that there is a genuine need for the nurse to receive a brief period of training unavailable in the alien’s home country.

In addition, H-3 classification is also available for participants in certain special education exchange visitor programs.  While there is a box available on the H supplement relating to special education exchange visitor program participants, there is no section in the Supplement that is designed to elicit information relating to this classification, nor is there any description of the requirements for obtaining H-3 classification as a special education exchange visitor in the instructions that accompany the Form I-129.

In order to account for all types of H-3 classification available under the regulations, parts B, C and D could be added to Section 5 of the I-129H Supplement as follows:

Section 5

Part A   Complete this part if filing for H-3 trainee classification (this part is already provided for in Section 5 of the 129H Supplement )

Part B   Complete this part if filing for H-3 classification as an Extern in a U.S. Hospital

a.  provide full explanation of the alien’s medical background and training

b.  provide full explanation of the externship program

c.  attach proof that the hospital is approved by the American Medical Association or the American Osteopathic Association for either an internship or residency program

Part C   Complete this part for Nurses coming to the U.S. as an alien trainee

a.  provide full description of the alien’s background and training

b.  describe fully the training program

c.  is individual currently present in H-1 status as a nurse? ___yes  ___no

d.  Provide explanation of whether there is a need for the nurse to receive training unavailable in alien’s home country.

Part D   Complete this part for H-3 classification as a participant in a special education training program.

a.  Describe the training program and the facility’s professional staff and provide details of the aliens’ participation in the training program

b.  Provide evidence of alien’s educational background in special education or training and experience in teaching children with physical, mental, or emotional disabilities.

In addition, the questions asked in Section 5 of the I-129H Supplement relate to the requirements in the regulations for obtaining H-3 status as an alien trainee.  However, there are also restrictions on training programs for alien trainees that are listed in the regulations at 8 C.F.R. sec. 214.2(h)(7)(iii).  These restrictions are not mentioned in the Form I-129 H Supplement or the Instructions.  A reference in the Instructions to these restrictions can provide useful guidance to employers in preparing an H-3 petition and help reduce the possible need for the INS to  issue an RFE.

OTHER RECOMMENDED CHANGES

In line with previous representations of the INS, we also recommend that Form I-539 (Application to Extend/Change Nonimmigrant Status) be incorporated into Form I-129.  By eliminating the need for a concurrent filing for dependent family members, a combined form will greatly reduce the volume of paperwork required to process extensions of stay, thereby furthering the goals of the PRA.  Specifically, a combined form will reduce the volume of paperwork for INS officers to review by 50% or more in many cases, given that many individuals on behalf of whom extensions of stay are sought are married and have children.  Further, combining the forms will reduce the incidence of  family’s applications becoming separated at the INS.



Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

by:

Jeff Appleman  
Daniel Horne
Warren Leiden
Elliott Lichtman
Susan MacLean

Frank Novak
Angelo Paparelli
Yoshiko Robertson
Susan Wehrer
Crystal Williams 
 

[1] ACWIA §412(a)(1)(E)(ii) (“an application is not described in this clause if the only H-1B nonimmigrants sought in the application are exempt H-1B nonimmigrants.”)

[2] The majority of the additional fees authorized by ACWIA in connection with H-1B petitions are earmarked to fund programs to educate and train U.S. workers.

[3] Department of Justice, Immigration and Naturalization Service, Agency Information Collection Activities: Extension of Existing Collection; Comment Request, 61 Fed. Reg. 59109 (Nov. 20, 1996), reprinted in Appendix V of 73 Int. Rel. 1747 (Dec. 16, 1996).

 
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