With the beginning of Fiscal Year 2018 rapidly approaching, those who were approved under the FY 2018 H-1B lottery should be excited to start (or continue) employment in the U.S. in the coming weeks. Less fortunate are those foreign nationals who have received Requests for Evidence (“RFEs”) on their Form I-129, based on U.S. Citizenship and Immigration Services’ (“USCIS”) seemingly new standard on what qualifies as a “specialty occupation.” It appears that the Trump Administration is asking USCIS to more closely scrutinize H-1B applications in accordance with his “Buy American and Hire American” executive order. This is particularly troublesome for individuals whose OPT employment have already expired and who have not yet received approvals on their Form I-129.
The RFEs indicate that either the position is too complex to support a Level 1 wage or that the position is not a “specialty occupation” because a Level 1 wage indicates the position is “entry-level”. USCIS is using a Catch-22: either the LCA is correct and job description is not as complex as indicated in Form I-129, or the LCA is incorrect, and the employee should be paid a higher wage.
Below are five (5) strategies in responding to H-1B Level 1 Wage RFEs:
- Duties of Employee Earning Entry Level Wages Can Be Specialized. A response should include a detailed description of the position and demonstrate how routine entry level duties still require knowledge and skills acquired from a specialized bachelor’s degree program. This is certainly true for doctors, lawyers, engineers, and other professionals, where a specific degree requirement is inherent of the occupation. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing “a degree requirement in a specific specialty” as “one that relates directly to the duties and responsibilities of a particular position”). Specifically explain how principles and concepts taught during academic coursework are applied to perform specific job duties. Alternatively, one may argue that the position’s duties are normal entry level duties, even if they seem complicated. It’s important to walk the fine line between a showing that the position is both entry level and complicated at the same time. When the position is complex and the LCA lists a Level 1 wage, USCIS may find your argument to be inconsistent.
- Entry Level Positions Can Be Specialty Occupations. USCIS’ implementing regulations at 8 C.F.R. § 214.2(h)(4)(ii)(A) provide four alternative criteria to satisfy the definition of “specialty occupation”. There is nothing in the INA or the regulations which suggests that entry level positions change the character of the occupation itself. Wage level is only used to determine the proper “prevailing wage”. Nevertheless, in the RFEs, USCIS is stating that the duties for the job position listed in the Form I-129 are complex and is contradictory to an entry level wage. Therefore, demonstrate that the position’s duties are not as complex relative to the other entry level standards of that position. Use current and/or former employees’ degrees and resumes, or job postings, to prove that the position generally requires a degree.
- Get Expert Opinions. It’s wise to include expert opinion letters to confirm the industry standard educational requirement for the position and that the listed duties for the position are standard, entry level obligations for that particular position. Experts can also provide context to explain how the principles and concepts taught during academic coursework are applied to perform specific job duties. Experts could include professors, headhunters, recruiters, or credible professionals who have worked in the industry for many years.
- Entry Level Wages Reflects Position Within Company. An organizational chart showing the employee’s entry level position within the company’s hierarchy and that higher-level employees closely supervise the work can be helpful.
- Ultra Vires. It can be argued that USCIS is acting beyond its legal power or authority (ultra vires) because the Immigration and Nationality Act (“INA”) has designated the U.S. Department of Labor (“DOL”), not USCIS, to certify the “prevailing wage” listed in the Form ETA 9035(E) Labor Condition Application (“LCA”). USCIS is only responsible for determining whether the H-1B position is a “specialty occupation” and that the beneficiary is qualified to perform the duties of the position. It seems that USCIS is overstepping its role in the H-1B process. Clearly cite applicable regulations distinguishing the agencies’ responsibilities.
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