By Richard Yemm
On January 25, 2018, the Administrative Appeals Office (AAO) published two non-precedent decisions, Matter of B-C, Inc and Matter of G-J-S-USA, Inc relating to H-1B petition denials based on the Petitioner’s classification of the proffered position as a Level I (entry-level) wage. The decision provides vital guidance to help resolve the “carnage” resulting from inconsistent interpretation and implementation of the Level 1 wage issue.
At the crux of both decisions was the issue of whether USCIS erred in comparing the Petitioner-indicated duties directly with the Department of Labor’s (DOL) generic definition of a Level I wage, i.e. “wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment.” In these non-precedent decisions, the AAO determined that, according to DOL guidance, the proper comparison should be between the Petitioner-indicated job duties and requirements and those associated with the appropriate Occupational Information Network (O*NET) occupation.
Moreover, the AAO stated that “there is no inherent inconsistency between an entry-level position and a specialty occupation,” asserting that every case must be judged on its own merits. The AAO clarified that “for some occupations, the ‘basic understanding’ that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty…. Likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent.”
We have previously discussed strategies to deal with such requests for evidence stemming from this issue and we remain hopeful that these decisions, while non-precedent, will help to clarify H-1B adjudications as we swiftly approach the FY 2019 H-1B filing season.
Wolfsdorf Rosenthal LLP is a full-service immigration law firm known worldwide for its unmatched excellence in providing top-quality U.S. immigration representation. Subscribe to our immigration blog to remain updated and contact Wolfsdorf Rosenthal LLP Immigration Law offices if you have any questions. We have Immigration Law Offices in New York and Los Angeles.