With the beginning of the annual rush to file H-1B applications on April 1 of this year, the focus is, once again, on the visa shortage which Congress has stubbornly refused to remedy for more than a decade.

But anyone who thinks that getting lucky in this year's upcoming casino lottery for the pathetically inadequate 58,000 H-1B cap-subject visas that will be available for H-1B beneficiaries who do not have US master degrees (also known as "random selection" - which sounds more elegant than "craps-shooting" or "roulette wheel") plus the similar appeal to the winds of fortune for the 20,000 extra visas set aside for US master degree holders, will guarantee approval for any given petition would be seriously underestimating the ingenuity and zeal of the AAO and at least a couple of federal judges in finding ways to subvert the H-1B law and deny meritorious petitions.

At least the croupiers in places such as Monte Carlo, Macao, Las Vegas and Atlantic City have a reputation for being honest and playing by the rules - even if they are only the house rules, which are of course stacked against the gamblers. But beginning with a June, 2013 AAO decision and continuing with two landmark federal district court decisions in 2014, USCIS and the courts are openly defying not only the clear language of H-1B statute itself, but also USCIS's own H-1B regulations in order to deny petitions based on entry level positions for no other reason than that they are entry-level.

Both the H-1B statute and the USCIS regulations have a basic litmus test for determining what is a "specialty occupation" for H-1B purposes. This test is whether the offered H-1B position normally requires a bachelor degree (or equivalent in a particular specialty for entry into the occupation (8 U.S.C. Section 1182 (i)(l) and 8 C.F.R. 214.2(h)(4)(ii) - bold and italics added).

As any high school student should have no difficulty in figuring out from the above language, the obvious intent of both the above statute and the regulation is to make someone eligible for H-1B based on the offer of an entry-level position, as long as the position itself meets the above specialty bachelor degree requirement.

But in the three decisions to be discussed in detail in my next post, the AAO, aided and abetted by at least two federal district court judges, has in effect ruled that offer of an entry level position in any field, no matter how specialized or complex, or how high the educational requirements normally are for that position, is automatically disqualified for approval as a specialty occupation.

These decisions are the US District Court cases Health Carousel v. USCIS (SD Ohio, January 3, 2014) and Caremax v. Holder (ND California, April 21, 2014), and a June 20, 2013 AAO decision with an unpublished title and case number originating in - you guessed it - the California Service Center.

This administrative/judicial sleight of hand, which would put even the most experienced casino croupier to shame by comparison, amounts to turning the above statute and regulation entirely on their heads. It is based on a distorted view of the language and intent of the LCA which accompanies every H-1B petition. In essence, these decisions use the LCA, not only for the purpose of determining what the prevailing wage is for any given H-1B occupation, but for the purpose of determining whether it is a specialty occupation, something which the US Department of Labor has no authority to do, according to these same decisions and countless other decisions.

This strategy involves taking the DOL's dumbed-down description of the skills needed for an entry-level (Level 1) position in any field of activity for the purpose of determining the appropriate prevailing wage, and using that same dumbed-down description to determine an issue dealing with the merits of the petition, i.e. whether the offered position is a specialty occupation. But this is something that only USCIS, not the DOL, has the authority to so.

Moreover, in determining whether a given H-1B job is a specialty occupation, USCIS is required by its regulations to use standards and methodology which are completely distinct from and often directly conflict with the DOL's one-size fits all view of entry-level positions as being appropriate only for people who have merely basic knowledge of their field and only follow instructions from their superiors in an unthinking, robot like manner, even if the USCIS's "Bible" known as the DOL's Occupational Outlook Handbook (OOH), states that a bachelor, or even master degree in that specialty is normally required for entry-level positions in the occupation in question.

Granted, the OOH often speaks with all the clarity of the ancient Greek or Roman Delphic or Sybilline oracles, or the Shang Dynasty oracle bones of ancient China. But USCIS has never had any problem in relying on the OOH in order to deny H-1B petitions on the grounds that the offered job is not a specialty occupation. However, even if the OOH or other evidence acceptable under the H-1B regulations might tend to show that a given position is in fact a specialty occupation, USCIS now has a handy excuse for denying the petition anyway, if the employer filed it with a Level 1 LCA.

In my next post, I will show how this strategy was used to deny the petitions in the three decisions mentioned above. To the best of my knowledge, these appear to be isolated decisions. Many, if not the great majority, of petitions filed with Level 1 LCA's are still being approved. But the effect, if any, of these three decisions, which I will discuss in my next post, should be carefully watched for the future.

To be continued.
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Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been representing business and professional clients in H-1B cases for more than 30 years. His email address is algaselex@gmail.com