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.