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). Many of you remember the “Computer Programmer memo” that came out on March 31, 2017 with updated guidance to adjudicating officers related to whether certain computer-related positions qualify as a specialty occupation for H-1B eligibility. This memo rescinded an old memo that had suggested that he position of computer programmer should be a specialty occupation. Instead, the new memo advises that not all computer programmer positions require a bachelor’s degree in specific field and those that don’t cannot be considered specialty occupations. So, how do they decide which computer programmer jobs require a degree and which ones do not? There are 4 ways:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; OR
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
BUT, a footnote in the Computer Programmer memo suggests that the wage level should be taken into consideration when weighing an employer’s arguments that the job is complex, unique, or specialized:
USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. In general, a petitioner must distinguish its proffered position from others within the same occupation through the proper wage level designation to indicate factors such as the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. Through the wage level,
the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties.
A footnote in a recent decision from the Administrative Appeals Office also adds:
The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will consider this selection in our analysis of the position. The “Prevailing Wage Determination Policy Guidance” issued by the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: ( 1) that the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive specific instructions on required tasks and expected results.
Lastly, the President’s Buy American Hire American Executive Order states:
In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.
It is against this backdrop that 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.
There are actually two flavors of the Level 1 Wage RFE:
- the job description may sound more complex than an entry-level job so USCIS is questioning whether level 1 is the correct prevailing wage. If it is not really an entry-level job, then USCIS will likely conclude that the “LCA does not correspond to the petition” and therefore is not valid.
- the job description does sound like an entry-level job so USCIS is questioning whether an entry-level job can be a specialty occupation (ie does the job really require a degree).
I’ve had several people ask if a new LCA can be obtained with a level 2 wage to successfully respond to this kind of RFE. Tread carefully here! Some of the RFEs suggest that you can submit a new LCA that corresponds to the proffered position. But, if you read the fine print, you will see that the RFE also says that eligibility for H-1B employment must be established as of the Form I-129 filing date. This means that LCA must have been in existence at the time the H-1B petition was filed. If you submit a new LCA that was just certified, you will likely end up with a denial.
Now the million dollar question is “how can I successfully respond to this kind of RFE to get my H-1B petition approved?”Unfortunately, this is highly case-specific, and I cannot give advice for specific cases without establishing an attorney-client relationship (read my disclaimer). Success or failure boils down to whether the position description and LCA wage level match and whether an employer can prove that the job meets at least one of the 4 criteria for specialty occupation listed above. If the job is entry-level, it may not be possible to claim that it is also particularly complex, specialized, or unique so one of the other criteria would need to be met.
Good luck and please report your successes or failures so that we can all be informed on this latest trend!