Reddy & Neumann, P.C. has recently obtained approvals of H-1B petitions overcoming Requests for Evidence in which the government had questioned whether the Level I wage designation on a Petitioner’s LCA corresponds with the Software Developer position being offered to the H-1B worker. As I’ve shared previously, there are two main types of “Level I” RFEs. The cases to be discussed involve RFEs 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.
We took a two-pronged approach to our responses by demonstrating that the offered positions fell squarely within the definition of Level I that is often quoted in these RFEs and also demonstrating that following the Employment and Training Administration Prevailing Wage Determination Policy Guidance leads to the conclusion that the positions are Level I.
Definition of Level I
This level should only be used for employees who will perform routine tasks that require limited, if any, exercise of judgement. The tasks provide experience and familiarization with your methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.
We broke down this definition into factors, explained how the job was consistent with each factor, and supported it with documentary evidence.
We explained how the intended position description established the Beneficiary needs only a “basic understanding” of the occupation because his duties are only foundational and he does not supervise or manage at a higher level. We submitted sample job postings for positions that closely align with the proffered position to establish that an entry-level software developer employs only a basic understanding of the occupation These job postings were for positions with companies similar to the Petitioner’s in industry type, size, and revenue.
To establish that the Beneficiary performs “routine” but specialized tasks that require limited, if any exercise of judgment, we explained that the majority of the Beneficiary’s time will be spent performing the routine tasks of coding, testing, implementing, debugging and documenting programs. The beneficiary may exercise some judgment in deciding how these tasks are performed, but this is done under close supervision of the team lead.
We explained how the Beneficiary’s tasks provide experience and “familiarization with the Petitioner’s methods, practices, and programs” and provided supporting evidence that the Petitioner conducts coaching and specific training for new employees to ensure that they are adhering to the Petitioner’s best practices. We emphasized that the Beneficiary was a new employee and was required to undergo the requisite training as an entry-Level employee in the proffered position to gain familiarization with the Petitioner’s methods, practices, and programs.
We talked about the typical career progression of Software Developers within the company to explain why the Beneficiary may perform some “higher-level work for training and developmental purposes.” We explained that beneficiary does not oversee the entire software development process but is involved in only routine software developer duties.
We used the company’s organizational chart to show that Beneficiary works under “close supervision” and receives specific instructions on required tasks and results expected. We also emphasized the company’s policy of requiring employees to report back to their supervisor on a daily basis. This was supported by statements in the employment agreement and performance review process.
To show that the Beneficiary’s work is “closely monitored” and reviewed for accuracy, we explained the company’s procedures for communication with the Beneficiary on a daily basis, discussions of the Beneficiary’s project milestones each day of the week, and how the Beneficiary was required to report to the company.
Employment and Training Administration Prevailing Wage Determination Policy Guidance
The second part of our approach was to direct USCIS to the appropriate Guidance from the Department of Labor on how to select the correct wage level. The process of determining the wage Level begins with the selection of the O*NET category of the proffered position, or to one most similar to the Petitioner’s job title of the proffered position. After selecting the appropriate O*NET title, the step-by-step process for arriving at the appropriate wage Level is based on a point system that starts at Level I and increases as the Level of skills, education, or training required rises.
Step 1 – The Petitioner selects the O*NET occupation that most closely matches the proffered position. The O*NET Requirements are then entered on the worksheet.
Step 2 – This step compares the overall experience qualification described in the O*NET Job Zone to the Petitioner’s desired experience.
Step 3 – This step compares the general education requirement for the occupation to the Petitioner’s desired education Level.
Step 4 – This step analyzes whether the employer’s requirements indicate the need for skills beyond those of an entry-Level worker.
Step 5 – This step determines the number of people to be supervised by the beneficiary to determine if there is a supervisory requirement.
There is a worksheet included with the DOL guidance that can be filled out to support how the company came to the conclusion that Level I was the correct level. Note that USCIS may give less weight to this worksheet if it is contradicted by other evidence in the record. Therefore it is extremely important to review the job description and other documents that were submitted with the petition to ensure that the job duties, education, experience requirements, special skills, etc. that may have been specified previously are consistent with what is being provided in the RFE response.
Please note that responding to these types of RFEs can be tricky, as the law and regulations are complex and interpretations have changed from previous years. It is important to consult a qualified immigration attorney to ensure that a well-reasoned, case-specific response is prepared for this type of RFE. The good news is that these RFEs can be overcome!