New trend in H-1B requests for evidence: Level 1 wages

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Many attorneys who are members of the American Immigration Lawyers Association ("AILA") are reporting a significant increase in Requests for Evidence ("RFEs") related wage issues in H-1B petitions. USCIS Vermont and California Service Centers recently began issuing a large number of RFEs where the agency is questioning whether an H-1B position qualifies as a specialty occupation because it is entry level, or questioning whether the Level 1 prevailing wage is too low for the offered H-1B position, based upon the duties described in the H-1B petition.

H-1B occupations are those that meet one of four basic criteria to be considered a specialty occupation: 

  1. a Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position; 
  2. the degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; 
  3. the employer normally requires a degree or its equivalent for the position; or
  4. the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

According to the U.S. Department of Labor ("DOL")'s prevailing wage policy guidance from 2009, a Level 1 (so called "entry-level" wage) is appropriate when a position requires a basic understanding of the occupation where an employee performs routine tasks that require limited, if any, exercise in judgment, working under close supervision. Attorneys report the RFEs they are receiving from USCIS quote this language from DOL and then state the positions described in the H-1B petitions are more complex than roles that would be assigned Level 1 wages, and therefore states employers have not sufficiently established the H-1B petitions are supported by certified Labor Condition Applications ("LCAs") that corresponds to the petitions.

Many employers file H-1B petitions for entry-level petitions and appropriately select Level 1 wages where the minimum requirement is a bachelor's degree or higher. For example, doctors, lawyers, engineers, architects and software developers, even at the beginning of their careers, must still possess a bachelor's degree, master's degree, or other professional degree as a minimum to do their job. Even the DOL worksheet included in the 2009 wage guidance indicates that if an occupation requires a bachelor's degree and up to two years of experience (for a Job Zone 4 occupation), it would appropriately be assigned a Level 1 wage.  Accordingly, employers and their immigration counsel should work to respond to these RFEs, consider citing DOL's own guidance, referencing typical O*Net taks work activities, knowledge, and Job Zone examples for the selected occupation and why that position is still clearly in Level 1 for wage purposes, while ensuring that the response still incorporates why the position qualifies as a specialty occupation.

We believe this increase in RFEs may be related to the USCIS policy memorandum, issued on March 31, 2017, that rescinded a prior USCIS memo that had acknowledged computer programmer positions are specialty occupations for H-1B purposes, and keeping in line with the current administration's "Buy American Hire American" agenda. It should be noted, however, that the March 31 policy memo was specific to entry level computer programmer positions and not a broader Level 1 wage policy for H-1B visas.  Indeed, there is nothing in the Immigration and Nationality Act or in implementing regulations that states a Level 1 wage is ineligible for H-1B petition approval.

If your company has received one of these Level 1 RFEs and need to devise a strategy for response, you can contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to see if they may be able to assist.  Please keep in mind that USCIS provides a firm deadline for RFE responses and failure to respond in a timely manner may result in denial of the petition and the foreign national losing work authorization in the U.S.