Two Tidbits of Goods News from the Third Circuit and from USCIS

Sometimes there is actual good news on an immigration issue, and, more rarely, as today, we have two such items!

The Third Circuit Court of Appeals has affirmed a U.S. District Court ruling and thus has given new life to the Department of Labor’s efforts to increase wages for the routinely under-paid H-2B workers, and newly released statistics show that USCIS was tougher on issuing another kind of non-immigrant worker visa in 2013 than it was the previous year.

The first story involves non-skilled, non-agricultural workers, such as forestry and carnival employees, and the second L-1B workers, employees of multi-national corporations with “specialized knowledge”. One decision dealt with blue-collar workers, and the other with those in white collars.

In both cases, long-running efforts crept ahead, despite the best efforts of exploitative employers.

The H-2B Case. Near the end of the George W. Bush administration, an advocacy group (the Comite de Apoyo a los Trabajadores Agricolas) sued the government over the low wages set in this program. Somewhat later, in the fall of 2010, the Obama administration, partially in reaction to the lawsuit, brought out new regulations calling for higher wages, as we reported in a blog at the time.

Those new regulations would have increased wages for most H-2B workers by something like $3 to $4 an hour and upset employers, who set their lawyers in motion against such raises. The employers’ lawyers took the case into district court, lost, and then appealed that decision. Then, on February 5, the Third Circuit ruled that the Labor Department did, in fact, have the power under the INA to raise these wages.

That decision can be read by users of PACER, the court’s electronic records system, as Third Circuit case 12-4030. It is Louisiana Forestry Ass’n Inc. v. Secretary U.S. Dept. of Labor, 2014 WL 444157.

I cannot tell from reading the decision whether or not the judgment is retroactive, and would thus give raises to thousands of workers who have left the States years ago; such decisions are extremely difficult to enforce and are usually avoided. If that is true in this instance, thousands of alien workers will be not receive the wages that the Department wanted them to be paid years ago and the employers have thus saved many millions by their legal efforts.

What is important is that the department’s power to set these wages has been upheld by this court; such wage increases bring more appropriate incomes to the aliens involved and encourage employers to avoid using the program, and thus hire American workers. In all probability, however, the litigation has not come to an end.

Meanwhile, on another nonimmigrant worker front there is news from DHS.

The L-1B Situation. In recent years, U.S. Citizenship and Immigration Services has become increasingly concerned about the misuse of the L-1B program, which (unlike H-1B and H-2B) is totally without labor market protections. Multi-nationals can bring in L-1Bs at any wage they want, even though the newly arrived workers often take jobs that could be taken by legal permanent residents and citizens.

The USCIS worry is that the concept of “specialized knowledge” required by law for such workers was being interpreted too broadly, and so it has been scrutinizing applications with additional care. This has, in turn, created unhappiness among the immigration lawyers and, as a result, the American Immigration Lawyers Association (AILA) filed an FOIA request on L-1B decisionmaking that produced the numbers in the table that follows. Another theory regarding the changing numbers is that because H-1B ceilings have been met, potential alien workers not granted visas by that program have been moved to L-1B by their employers, even though they are not eligible for it, and USCIS is noticing.

“RFEs”, one of the categories below, are USCIS documents asking for more information (Requests for Evidence); they are issued when the staff has doubts about an application. Corporate lawyers hate them. As the statistics show, RFEs usually, but not always, lead to denials.

USCIS Activity Regarding L-1B Petitions, 2013 and 2012

Fiscal Year Receipts Approvals Denials RFEs RFEs as % of Receipts
2012 18,740 14,180 6,068 8,688 46.4%
2013 17,723 11,994 6,242 8,363 47.2%

Source: USCIS via AILA Freedom of Information Act request.

All but one of these measures moved in the right direction. Apparently because of increasing scrutiny, corporate employers asked for fewer L-1B workers; for the same reason, the number of approvals fell sharply and denials increased. RFEs fell slightly in raw numbers, but rose slightly in comparison to receipts.

Further, the approval rate, as a percentage of receipts, in FY 2013 was only 67 percent; this contrasts sharply with overall approval rates in this agency, which usually run 90 to 95 percent.

Would that USCIS took this much care with other applications!

Two Tidbits of Goods News from the Third Circuit and from USCIS

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