What Does USCIS Want in the Level 1 Wage RFE?

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What Does USCIS Want in the Level 1 Wage RFE?

By ImmigrationGirl September 15, 2017 H-1B 4 Comments

 

Many readers here at immigrationgirl.com have been asking about a new kind of H-1B Request for Evidence (RFE) mentioning the use of a Level 1 Prevailing Wage on the Labor Condition Application (LCA). USCIS has begun issuing RFEs on petitions with a Level 1 Wage seeking to determine whether the job can qualify as a specialty occupation. This seems to be the administration’s way to weed out applications that are not for the “most-skilled or highest-paid” workers. It also helps protect the economic interests of U.S. workers by implying that higher wages are needed to obtain H-1B approval. Of course, the number one question is how to respond. While the below are not the ONLY things that should be submitted, in my opinion, they should be addressed in the RFE response, at a minimum. There are two basic types of these RFEs:

For the “Level 1 wage” RFE  questioning whether the LCA corresponds to the position, USCIS is suggesting that the job description sounds more complex than an entry-level job. These types of RFEs ask for:

• a letter explaining how the Level I wage desgination LCA corresponds to the proffered position; and
• documentation to support that the Level I wage designation on the LCA corresponds to the proffered position.

What is USCIS looking for in these documents? Specifically, the employer should, at a minimum, be able to explain 5 things:

1. how the job requires only a basic understanding of the occupation
2. how the tasks are routine and require limited, if any exercise of judgement
3. how the tasks provide experience and familiarization with the company’s methods, practices, and programs
4. how much “higher-level” work is done and whether it is done for strictly training and developmental purposes
5. how does the company closely supervise the employee, do they give specific instructions on required tasks and results expected, and how is the work closely monitored and reviewed for accuracy

The explanations to these 5 points must be consistent with the job description that was already submitted. In addition, supporting evidence should be included to address each point. It must be case-specific, ie a general response is not going to cut it. An organization chart of the company, explanation of the typical career progression for someone starting out in the job, job descriptions for the positions that supervise the entry-level position, etc can all be helpful to make these points.

 

 

For the “Level 1 wage” RFE questioning whether the job is a specialty occupation, USCIS is suggesting that the job description sounds so easy that it must not require a bachelor’s degree (note that it is not enough to show that a bachelor’s degree is required, to be a specialty occupation the job must require a bachelor’s degree in a specific field of study).

What is USCIS looking for here? Specifically, the employer should, at a minimum, show that the job meets at least 1 of these criteria:

1. the job normally requires at least a bachelor’s degree in a specific field of study. This can become difficult where the Occupational Outlook Handbook suggests that some employers don’t require a bachelor’s degree or that a degree in several fields is accepted. In fact, most of these RFEs quote the Occupational Outlook Handbook as the reason why they think it is not a specialty occupation.
2. the degree requirement is common to the industry in parallel positions among similar organizations. There are three pieces of evidence USCIS will look for here: a. the Occupational Outlook Handbook (again, may not be helpful, as mentioned in #1), b. whether there is an industry professional association which has made a degree a minimum entry requirement (only some occupations will have this), OR c. whether letters or affidavits from firms or individuals in the industry establish that such firms routinely employ and recruit only degreed individuals. Here, I think letters from competitors are a good option. Employers may also submit job postings from other employers, BUT, be aware that USCIS will go through these with a fine-toothed comb. They want to see that the companies are the same size and revenue as the employer sponsor, that they are in the same industry, that they are for positions with similar job duties, and are also entry-level.
3. the employer normally requires a bachelor’s degree in a specific field of study. This one can also be a good option.  USCIS will want to see the employer sponsor’s job postings for the position being offered to see if it was mentioned that a bachelor’s degree in a specific field is required. In addition, if the company has previously employed others in the same position, USCIS will want to see the education documents of those other employees AND paystubs, W-2s, or other payroll records to prove they actually worked for the employer sponsor.

There are technically 1 and 1/2 additional criteria that can be used to prove specialty occupation, BUT the use of the Level I wage in the LCA makes these almost impossible to satisfy.

 

 

Again, these are not the ONLY things that should be submitted in response to an RFE. These are things that I think should be addressed in the RFE response, at a minimum. At this point, we all have to look into our crystal balls to try to predict what USCIS wants and how they will react to the documents submitted. This is in no way meant to be specific legal advice for your case. I just hope this gives you some direction in how to respond to these types of RFEs. Good luck and please report your successes or failures so that we can all be informed on this latest trend!