Federal Agencies, Agency Memos & Announcements

H-1B Wage Level and Specialty Occupation Documents Released in FOIA Lawsuit

9/18/19 AILA Doc. No. 19091601. Business Immigration, H-1B & H-1B1 Specialty Occupation

On behalf of the American Immigration Lawyers Association (AILA), the American Immigration Council (the Council), filed a FOIA lawsuit last year to compel the release of records concerning USCIS’s adjudication of H-1B petitions, in particular how the wage level annotated on the Labor Condition Application (Level 1, Level 2, Level 3, or Level 4) may impact the adjudication of petitions for H-1B classification and how USCIS determines whether a position is a “specialty occupation.”

Background

On September 21, 2017, AILA submitted a request for information under FOIA seeking USCIS records relating to how the wage level annotated on the Labor Condition Application (Level 1, Level 2, Level 3, or Level 4) or the use of a private wage survey may impact the adjudication of petitions for H-1B classification. AILA also sought USCIS records on how the wage/salary offered to the beneficiary by the employer may impact the adjudication of petitions for H-1B classification. In addition, AILA sought records regarding the implementation of the USCIS Policy Memorandum, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions,’” PM-602-0142 (Mar. 31, 2017).1

Subsequently, on April 24, 2018, AILA submitted a second request for information under FOIA seeking records regarding how USCIS determines whether a position is a “specialty occupation,” in particular USCIS records that describe, explain or interpret the term “specialty occupation” under INA section 214(i) and records that describe, explain, or interpret how adjudicators use information contained in Department of Labor resources in determining whether a position is a “specialty occupation.”

Lawsuit

On June 11, 2018, after USCIS failed to produce any records in response to these two FOIA requests, the Council filed a FOIA lawsuit on behalf of AILA to compel the agency to search for and produce responsive records.

In response to the lawsuit, in August 2018, USCIS provided AILA with an initial production of records for both requests. Since USCIS designated its response to the H-1B specialty occupation FOIA request as “rolling,” the Council sought clarification when AILA received no further records. In response, USCIS indicated that it would not be providing any additional records. AILA objected, and the Council’s negotiations on AILA’s behalf as to deficiencies in USCIS’s responses to both FOIA requests resulted in USCIS releasing additional responsive records between October 2018 and July 2019.

On July 17, 2019, USCIS completed its release of additional records to AILA’s satisfaction, and in August 2019, the parties agreed to settle the matter.

AILA would like to thank the Council for their litigation efforts on behalf of AILA. In particular, AILA would like to thank Leslie Dellon, Staff Attorney (Business Immigration) and Mary Kenney, Directing Attorney, Litigation, whose work is responsible for USCIS producing the records that AILA received.

Document Production

Our review of the documents produced by USCIS is still ongoing. However, AILA has selected records that it thought would be of interest to its members and the general public. Further analysis of these documents is forthcoming.

H-1B Wage Level FOIA Document Production (Curated)

USCIS Policy Manual

Training Materials/Guidance

RFE & Denial Template Language

Talking Points/Overview Documents

Emails

For the full H-1B Wage Level FOIA document production, please see the links below:

H-1B Specialty Occupation FOIA Document Production (Curated)

Emails

Training Materials/Guidance

RFE & Denial Template Language

AAO Decisions

For the full H-1B specialty occupation FOIA document production, please see the links below:

1 Please note that in November 2017, AILA amended this FOIA request to include a request for a fee waiver.

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