I-140s under attack
Since 2017, the Trump administration has unleashed a barrage of attacks upon legal immigration, most of which have been targeted at the H-1B program. This has made it much more difficult to obtain H-1B approval, which is evidenced by the increasing RFE and denial rates. Despite such attacks, I-140s have remained largely unscathed.
However, in the last two weeks I have seen three separate I-140 RFEs, all raising new challenges, the likes of which have not been seen before. Do these RFEs represent a new trend? It’s very likely, given the fact that so many individuals rely on an I-140 approval as a means of extending their H-1B status beyond the 6- year limit. This is just another way for the administration to prevent individuals from continuing down the H-1B path.
Until now, the issues regarding I-140 petitions broadly fell into two categories, namely:
1. Whether the Beneficiary was qualified for the proffered position on the basis of his/her education; and
2. Whether the Petitioner had the financial ability to pay the Beneficiary’s wage from the priority date going forward.
Both RFEs were usually avoidable to a large extent. When reviewing and finalizing the minimum requirements for the position at the PERM stage checking that the Beneficiary’s education and experience to make sure they are a good fit for the position usually avoids the first issue.
In terms of the financial ability aspect, although this is not relevant until the I-140 stage, reviewing this at the outset when starting the PERM ensures that companies does not face problems further down the line. Ideally, the Petitioner should be paying the Beneficiary the proffered wage so when they get to the I-140 stage they can submit copies of paystubs to show that the Petitioner is already paying the required wage. Additionally, analyzing the company’s tax returns to make sure they have a healthy net income can help avoid the second issue.
Problems can however arise regarding the financial ability component, if the tax returns are not available when the PERM is initiated and then when they are later filed and ultimately show a negative net income. Fortunately, there are other arguments that can be made and other types of evidence that can be introduced to overcome these issues. This article will not discuss this strategy as the purpose of this article is to address the new issues which we are seeing here at The Patel Law Group.
New trend of I-140 RFEs
As recently as three weeks ago, I was contacted by a client who had received an RFE questioning whether the Petitioner had made a bona-fide offer to the Beneficiary.
The RFE cited a lack of agreements etc. between the Petitioner and potential end clients where the Beneficiary would be placed. It also questioned the Petitioner’s authority to hire or fire the Beneficiary and set the rules/regulations of the Beneficiary’s work. Furthermore, USCIS asked if the Beneficiary would report to someone at the Petitioning organization. In raising this challenge, USCIS went on to ask for the exact location of the Beneficiary’s intended employment and copies of contracts under which the Beneficiary would be employed.
Now, all of this sounds like an H-1B RFE asking about the employer/employee relationship and sufficient specialty work.
Never have I ever submitted any of the above requested evidence for an I-140 or been requested to provide these. So, I decided to go back to basics and look at the I-140 requirements. I didn’t have to look far as the adjudicating officer had conveniently laid out the requirements in his/her RFE as follows:
· “You obtained an Application for Permanent Employment Certification from the Department of Labor, or instead seek designation of the beneficiary’s occupation under Schedule A;
· The position qualifies for the requested classification;
· The beneficiary qualifies for the requested classification;
· The beneficiary qualifies for the position;
· You have the ability to pay the proffered wage to the beneficiary.”
As you can see there is no requirement to demonstrate the Petitioner’s authority to hire or fire the Beneficiary and set the rules/regulations of the Beneficiary’s work. Furthermore, there is nothing in the above to lead me to the conclusion that I need to provide copies of contracts for where the Beneficiary will ultimately work when he/she receives his/her green card. Afterall the PERM/I-140 is for future employment.
In responding to this RFE I decided to remind the adjudicating officer of the I-140 requirements and quoted the adjudicator’s field manual which mirrored the above requirements. I reminded the officer that based on the retrogression in priority dates under the EB-2 and EB-3 categories that the Beneficiary (from India) wouldn’t receive a green card for at least 10 years so how could my client possibly provide contracts for where the Beneficiary would ultimately work when he receives his green card. In responding to the RFE I provided copies of paystubs, performance reviews, offer letter, progress reports etc. I also provide copies of contracts, SOWs to show where the Beneficiary was currently working, although I specifically stated that they were not indicative of where the Beneficiary would work in the future. All of the documents provided were taken from the Beneficiary’s H-1B so USCIS already had these documents, but I submitted them again to demonstrate my point.
I am pleased to say that shortly after submitting the RFE response I received an approval for my client. However, just days later I saw another two very similar RFEs. Both of these RFEs went a step further and requested copies of all of the recruitment which was done for the PERM along with a signed recruitment report. This was starting to sound like a DOL audit.
Again, I have never submitted copies of the recruitment or recruitment report for an I-140. Why then does USCIS suddenly need to see these documents or believe they are entitled to see these? Whatever, the reason, these new requests demonstrate a departure from previous practices and a new attack on I-140s. This attack on the I-140 appears to be an indirect attack on the H-1B, especially against those who rely on an I-140 approval to keep extending their status. By denying the I-140 USCIS will effectively be able to provide individuals from remaining on H-1B.
In PERM cases, unless there is an audit, copies of the recruitment do not see the light of day. However, I suspect USCIS will now be looking for inconsistencies in the recruitment as a reason to deny the I-140. I would strongly advise reviewing the recruitment in detail to ensure complete consistency and if necessary, consulting with an Immigration Attorney before responding to a similar RFE.
Until now, I-140s have had an easy ride under the Trump administration, but this may all be about to change. However, I believe a well drafted RFE response can overcome these issues.
To end on a brighter note, I received a PERM approval yesterday after just 6 weeks! This is the fastest approval I can recall for a very long time. PERM approval typically takes 3-4 months. This is definitely a trend which I would like to see moving forward.
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