I entered USCIS expecting the same fidelity to reason and the law. But there was a key difference: no one was holding USCIS accountable. This allowed a culture of insanity and self-importance to flower like weeds on a compost pile.
One of the first cases I handled at the AAO typifies how USCIS has completely lost sight of its role in the immigration process, and has become an unchecked narcissistic power consumed with its own importance.
The Service Center denied a petition for an advanced degree professional (EB2) physical therapist because, in its opinion, the employee was “not qualified for the proffered position.”
I picked up the file, and started to read (all USCIS files are still paper, bound together with brackets). The first thing I read was the SC denial. I next read the petition on the Form I-140, and ETA 9089. After reading the entire file I noted that:
The employer was seeking an EB2 advanced degree professional visa;
The employee had a master’s degree in physical therapy from a foreign college;
He had applied for and been granted a license from the State of Washington to practice physical therapy;
Physical therapists are a Schedule A occupation, which means the government has declared a shortage in the US labor market, and an immediate need for members of this profession.
According to the rationale in the denials, even though the work product of a new engineer can only be done by someone with an engineering degree, and the supervisor is reviewing work product to ensure it meets established engineering standards, the entry level engineer is not showing a “theoretical and practical application of a body of highly specialized knowledge.”
Attorneys appealed these cases to the AAO, and presented arguments for why a WL1 position requires application of specialized knowledge and consequently can be a specialty occupation.
Last week the AAO began releasing decisions on this issue. However, the AAO did not address the legal arguments in the appeals. Nor did the AAO even address the rationale for the underlying denial.
Lets start with the basics. Congress “split enforcement” between DOL and USCIS for these visas. An employee is “qualified” for EB2/3 visas if they meet the requirements the employer listed on the “labor certification,” and DOL’s regulations defining terms in the LC process. In nearly every decision the AAO publishes, it endorses this concept and says
”… USCIS must examine ‘the language of the labor certification job requirements’ in order to determine what the petitioner must demonstrate that the beneficiary has to be found qualified for the position… USCIS’s interpretation of the job’s requirements, as stated on the labor certification must involve ‘reading and applying the plain language of the [labor certification]’”
USCIS claims to limit analysis in these cases to the “terms of the labor certification.” However, in several areas, USCIS has created policy and regulations that contradict DOL’s authoritative reading of the statute. The definition of “professional” is just one of these contradictions.
The LC is created by the statute and controlled by DOL’s regulations. So, it stands to reason that DOL’s definition of key terms in the INA could not be superseded by USCIS.
This outcome would also be consistent with federal administrative law, which dictates lines of authority when Congress “splits enforcement” of a statute between two agencies. Typically, split enforcement regulatory regimes have one agency with technical knowledge, expertise, and authority to define the terms of the statute. A second agency applies the definitions and regulations to the facts, and acts as a neutral adjudicator. In the event of a conflict, the courts will only defer to the agency with technical knowledge.
Between DOL and USCIS, which agency has the technical knowledge and expertise to define the terms of the statute relating to employment in the US? Put another way, would a court defer to DOL or USCIS when asked which agency has authority to define the terms impacting the US labor market.
Lets take a look.
DOL maintains a trove of statistical data that defines nearly every aspect of employment in the United States. It has meticulously defined nearly every aspect of Americans’ work. In reviewing an application for labor certification, it takes its data and definitions, and compares them to information gathered from the petitioner on the ETA Form 9089, Application for Permanent Employment Certification.
First, DOL identifies the petitioning employer’s industry using the North American Industry Classification System (NAICS) Code provided at ETA Form 9089, Block C.8.
Then DOL analyzes the occupation. Every occupation in the United States falls under a delineated Standard Occupational Classification (“SOC”) Code. The Bureau of Labor Statistics (“BLS”) is a component of DOL which creates and administers the SOC system. The SOC system is used by DOL to classify workers into occupational categories for the purposes of collecting, calculating, and disseminating data. All jobs in the United States are classified according to their occupational definition into one of 840 detailed occupations. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together.
DOL also maintains O*Net OnLine (“O*Net”). O*Net takes the SOC Code, and defines the occupation’s necessary: Tasks; Tools and Technology; Knowledge; Abilities; Work Activities; Work Context; and Job Zone (preparation needed for the position).
DOL requires the petitioner to select which SOC Code applies to the proffered position. It also requires the petitioner to list the job duties and requirements. It then compares the claimed SOC Code against the job duties provided on the ETA Form 9089 to ensure the position is properly classified as either a professional or nonprofessional occupation.
DOL does this by placing jobs in an SOC Code into one of five Job Zones, ranging from occupations that require little or no preparation to occupations that need extensive preparation. Job Zones are determined based upon the required entry level education, necessary related experience, job training, and Specific Vocational Preparation (“SVP”) range. To determine the availability of qualified, willing and able United States workers, DOL requires the employers to use the above standards to test the labor market. This is done through recruiting. DOL has different requirements for recruiting based on if the position is a nonprofessional or professional occupations. 20 C.F.R.§ 656.17.
Job Zone 4 states that “[most] of these occupations require a four-year degree, but some do not.” Job Zone 5 occupations typically require graduate school. According to DOL regulations, if an occupation is assigned to Job Zones 4 or 5, the petitioner must indicate that the position is for a “professional” occupation when filling out Block I.a.1 on the ETA Form 9089. If DOL’s data, described above, indicates that the position is a Job Zone 4 or higher, and the employer does not indicate it is a “professional,” DOL will not grant labor certification.
DOL promulgated the following regulation, at 20 C.F.R.§ 656.3, defining professional occupation:
A beneficiary of an application for permanent alien employment certification involving a professional occupation need not have a bachelor’s or higher degree to qualify for the professional occupation. However, if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on the Application for Permanent Employment Certification form.
Thus, DOL’s reading of the statute, based upon its expertise in defining and regulating employment and occupations in the United States, does not find “professional holding a baccalaureate degree” requires a four-year analogue of a United States bachelor’s degree, or any degree for that matter. This regulation allows beneficiaries to qualify as professionals without formal higher education in the labor certificate process. This is the definition that defines the terms on the labor certification.
DOL’s understanding of the term professional has been consistent since 1965.
To determine if the proffered wage is below the local prevailing wage DOL consults multiple sources. First, it looks to what the petitioner provides regarding the beneficiary’s education and work experience. This, coupled with the SOC Code indicates what Wage Level the proffered position should be assigned. DOL assigns positions to one of four Wage Levels which represent increasing levels of skill and ability within the occupation. The SOC Code and Wage Level are then used to compute the prevailing wage for the Metropolitan Statistical Area (“MSA”), which can be determined using DOL’s Foreign Labor Certification Data Center wage search. DOL ensures the wage the employer intends to pay the worker is not below the prevailing wage.
If, after comparing information provided by the employer against its regulatory and statistical requirements, DOL finds that there are insufficient qualified, willing and able domestic workers, and that hiring the proposed worker would not negatively impact domestic wages it will grant labor certification.
At its essence, labor certification defines: the proffered job; the minimum requirements for the job; and, the proffered wage. The employer then takes the labor certification to the United State Citizenship and Immigration Agency who matches the terms of the labor certification against the proposed employee’s (“beneficiary”) qualifications.
USCIS has no expertise in the US labor market. Its only cognizable role in the EB2/3 process is its admitted role: applying the evidence to the terms of the LC. Why then has USCIS made definitions of a key statutory term at odds with DOL and the LC regulations?
In the case above, USCIS cited to Matter of Shah, a legacy INS Regional Commissioner’s decision from 1977, for the four-year degree requirement.
We are really looking solely at which agency has the ability to regulate the US labor market. So, for the time being, we will ignore the following facts in Shah:
Instead, let us focus on the core concept that USCIS lacks any expertise in the US labor market that would empower it to make this rule.
I took my research on this topic, and explained that if the agency were ever sued on this issue it would lose. After all, DOL is equipped with the ability to make informed regulations on the US labor market, USCIS is not. USCIS acknowledges that its role is limited to applying facts to DOL’s regulations, and in the next page of the decision usurps DOL’s regulatory role and sheds its self-described limits.
My legal research showed that under the labor certification process from the prior INA multiple circuit courts had heard cases where INS and DOL regulations were at odds. In each circuit the outcome was the same: DOL controlled, and INS regulations were rejected.
I noted that SCOTUS decisions examining split enforcement regulatory regimes (decided after the above referenced labor certification cases under the 1965 INA) indicate that any contradiction between DOL and USCIS would be resolved against our agency.
While everyone agreed the law did not support the agency position, the policy did not change. Why? And here I quote: “the immigration bar will never make that argument. They don’t know how to litigate. We don’t need to worry.”
Why has the immigration bar given up ground on this point? Prior generations had litigated this issue, and courts resolved it. Yet, today USCIS is allowed to run rough shawed (pun intended) over the US economy with its arbitrary policy decisions.