H-1B Wage Level 1 RFEs: Specific Actions to Take
Supporting Documents & Strategies
As stated and meticulously explained in previous posts, there has been a growing trend of requests for evidence (RFEs) being issued in response to H-1B petitions concerning the lower wage levels specified of the proposed positions. In general, these RFEs allege that a Level 1 wage (and increasingly Level 2) is indicative of a non-specialty occupation, thus disqualifying the petitioner's request from the criteria within the H-1B visa program.
As a quick review, these types of RFEs can be differentiated into three categories:
- The Duties Indicate that the Position is Beyond Level 1
- United States Citizen and Immigration Services (USCIS) may claim that the duties demonstrate a position that is beyond entry level and that therefore the petitioner has not established that the petition is supported by a correspondingly certified Labor Condition Application (LCA). These RFEs generally place the burden on the petitioner of thus supporting that the Level 1 wage is appropriate for the position or, in some cases, instead to submit a new and better suited LCA altogether (if certified before filing).
- The Level 1 Wage Indicates that the Position is not a Specialty Occupation
- In cases in which USCIS claims that the position is not a specialty occupation as signified by its Level 1 wage, the petitioner must respond by offering further justification of the offered position's specialty occupation status.
- A Hybrid of the First Two Categories
- USCIS is claiming in this type of RFE that the position's duties are beyond entry level and that the Level 1 wage indicates a non-specialty occupation simultaneously.
We previously demonstrated in detail that this growing USCIS practice is not only unjustified by guidance or statute, but inappropriate in that it encroaches upon the Department of Labor's (DOL) exclusive jurisdiction over determining wage levels and their application. USCIS is therefore outside its scope of responsibility in utilizing wage levels to determine the appropriate complexity of a position or its effects on whether it is to be categorized as a specialty occupation.
Furthermore, we discussed many strategies with which to confront the rationale thought to support these RFEs, asserting the illogicality of determining the status of a specialty occupation by a higher wage level as well as the unfounded nature of USCIS's repeating claim that a high complexity of duties places a position outside of the Level 1 wage tier. It is not complexity, but rather the qualifications necessary for a position (namely, the necessary degrees given by an institution of higher learning) that define a wage level as well as specialty occupation status.
While strategies to debunk USCIS's rationale have already been provided, there are still additional specific actions a H-1B petitioner can seize upon in order to most effectively combat such an RFE, actions that we will now expound upon here.
Useful Research and Documentation
The Fulfilling of the Degree Requirement by Itself Qualifies an Applicant for the Position
Petitioners may turn to the Occupational Outlook Handbook (OOH) code listed on a petition’s accompanying LCA to determine and present the given occupation's educational requirements. Information within the applicable Job Zone and the O*Net Online summary report may provide additional industry-specific information as well as a percentage of respondents with positions in the same classification acquired with the same required degree.
Supporting letters could also be presented in support of the degree requirement. The petitioner, for one, should provide such a comprehensive description of the job duty requirements in addition to analyses of the required faculties an applicant must have to be able to perform such duties. Supporting letters from other similar businesses within the same industry providing like descriptions would further bolster this evidence's effectiveness.
To further demonstrate that the required degree is sufficient in informing the applicant's competence for the position's responsibilities, a letter from an academic professor within the field could also be sought describing the degree's coursework and its effectiveness in preparing the applicant for the position offered.
Furthermore, product examples as developed by the petitioning company's employees within similar positions may also be presented, including such examples as reports, presentations or designs.
Finally, the petitioner may also provide descriptive examples of the position's typical daily/weekly schedule, including such evidence as the percentage breakdown of the duties involved.
Showing that the Degree is Commonly Required by the Industry
There are a number of ways to demonstrate that the applicable degree/education within an H-1B petition is common in regard to the specified industry, and therefore justified as a specialty occupation within its wage level. Such steps may include:
- Providing job postings of similar companies listing the same requirements.
- Obtaining letters from professional associations related to the industry in confirming that a bachelor’s degree or higher in the specialty is the typical requirement for the field's entry.
- Obtaining letters or affidavits from comparable companies confirming the position's degree requirements.
Letters should of course fit the RFE's requirements when applicable and include descriptions of the author's qualifications as an expert, how the conclusions were drawn and copies or citations of the materials used to reach those conclusions.
One should also exercise considerable prudence in providing proof of the degree's commonality as a requirement within the industry, ensuring that the job postings are for positions that are indeed sufficiently similar, avoiding postings with multiple degree fields listed and avoiding postings listing a "preferred" degree rather than a required one.
Demonstrating that the Petitioning Employer Consistently Requires the Specific Degree Field
The petitioner should find any documentation available in order to confirm that the degree or its equivalent is normally required for the position offered. This documentation should show that past postings list very similar requirements to those in the petition, and if they do not, the discrepancies should be explained in convincing detail.
The following evidence should also be considered in demonstrating the petitioner's hiring practices:
- The petitioner’s organizational chart with its hierarchy and staffing levels.
- Copies of its present and past job postings for the proffered position showing that applicants are required to have a minimum of a bachelor’s degree or higher (or its equivalent) in the specialty.
- Copies of degrees and/or transcripts verifying the level of education of previous hires when possible and appropriate.
Note: Another strategy in proving that the proffered position is that of a specialty occupation would be to argue that the complexities of the position necessitate the candidates acquiring of the appropriate degree. This should be approached with due caution, however, as USCIS may use such a tactic to then assert that the position is inappropriate for the Level 1 wage.
Avoiding an RFE Due to Wage Level 1 Altogether
Raising the Wage Level
Due to the complications introduced by the shifting USCIS policy regarding Level 1 wages, petitioners may attempt to avoid such a possibility by raising the wage level before submitting the H-1B application. This option may be available in cases when there is a planned wage review soon or if a wage review is possible by the employer.
In addition, if it is extremely important for the employer to hire the foreign national and benefit from his or her particular skills, but the employer cannot afford to pay a Level 2 or Level 3 wage per full-time employment, the petitioner may consider hiring the foreign national on a part-time basis.
Not Arguing All Four of the Specialty Occupation Criteria
Many petitioners and their attorneys approach the H-1B process by arguing the position's meeting of all four criteria within 8 CFR §214.2(h)(4)(ii). However, it is only necessary for an H-1B petition's candidacy that one of these grounds be satisfied, and it may be counter-productive in the case of an entry-level position to argue the level of complexity required in (4) or in the second prong of (2). Simply providing strong evidence of (1) and (2) in these cases may be the more viable option in these cases.
While it is clear that lower wage levels should not be used by USCIS as an indicator of whether or not a position is that of a specialty occupation, and is a procedure to be amply resisted, it is the growing reality we are faced with today. Noting this, it is paramount that all preparation measures are taken in light of this developing policy, and petitioners should therefore carefully consider the options that lay before them.