Benching, for those who don’t know is when a company doesn’t pay a foreign employee when the employer lacks work.
USCIS claimed it was creating this new rule as part of its “broad statutory authority to protect US workers wages and working conditions.”
If you read the memo, you would notice that the Department of Labor was not mentioned or even referenced once. Which is odd, because under the Immigration and Nationality Act (INA) DOL is the only federal agency that is given authority to enforce the labor conditions application (LCA) which is designed to protect US workers.
So, just how “broad” is USCIS’s statutory authority?
Aside from INA 101(a)(15)H)(i)(b), which references both DOL and USCIS, the two agencies are given powers in their own separate statutory sections. DOL has its authority under INA 212(n), and (p), which takes up about 6,000 words of riveting statutory text. Congress has repeated updated and expanded DOL’s authority to enforce the LCA process and protect US workers wages.
USCIS is charged in INA 214(i) with determining if an H1B petition has an LCA, and whether the occupation (defined by DOL) qualifies as a professional (also defined by DOL) “specialty occupation.”
To determine if a position is a “specialty occupation” USCIS opines on whether it requires an theoretical and practical application of a highly specialized body of knowledge.
INA 214(i) is roughly 200 words of text that boils down to requiring USCIS to say “the occupational category found in DOL’s SOC Code and O*Net is really complex and requires a bachelor’s degree.” Given that’s the extent of their statutory charge, you would expect to see USCIS provide some insight into what it takes to show “specialty occupation” and what it means to require “theoretical and practical” bodies of knowledge, right?
You would be wrong. All USCIS regulations do is parrot back the same language in the statute.
Whats that you say? 8 C.F.R. 214.2(h) is really long, so surely USCIS has created some standards to implement INA 214(i)!?
Not so much.
If you look at that section of the regulations, and compare it with INA 212(n), you will notice something very odd. Most of USCIS’s regulation deals with DOL enforcement authority.
Authority to Regulate Benching
So getting back to the memo, just how broad is USCIS’s authority to prevent “benching?”
If you ask Congress, and read the statute, USCIS doesn’t have any authority in this area.
This is especially true when you see that the powers USCIS is using contradict not only DOL’s regulations but the text of the statute created by Congress.
One quick example, USCIS now requires employers to provide proof that the employee will be perpetually engaged in “specific non speculative” projects for the duration of the LCA validity period. So, according to USCIS, you must know exactly what that employee will be doing for three years when you file an H1B visa (lets forget the fact that the H1B system runs on a lottery and you don’t know if you will have an employee to work on a project).
But Congress explicitly stated that there will be times when an employer doesn’t have work, and the employee will be in a non productive status! In that situation Congress requires the employer to continue and pay the full rate of pay. And if the employer doesn’t? DOL has authority to force the employer to pay back pay.
If you are curious, Congress said USCIS has power to do…….yeah, nothing. Congress didn’t mention them in INA 212(n).
Congress expected them to sit back and create a regulation that defined some really wonky terms in the statute, like “specialty occupation” and “theoretical and practical application of a body of highly specialize knowledge.”
So, USCIS, its been almost 30 years, can we please have a definition of those terms so we don’t have to read your ridiculous RFEs hinting at what it takes to show something is a specialty occupation?