Wage Level 1 RFE – An overview on how attorneys tackle it
Wage level 1 RFE is this year’s H1-B visa’s bane. First, USCIS cancelled H1B premium processing for 6 months. Then, it started issuing Wage level 1 RFE for many applications. This Wage level 1 RFE attempts to trap employers by challenging the Labor Condition Application filed for the H1-B petition. According to the DOL’s prevailing wage policy guidance, a Level 1 wage corresponds to positions that require a basic understanding of the occupation. In addition, the entry level employee performs routine tasks. An requires close supervision. (If you want to know the latest H4 EAD update click here.)
The Wage level 1 trap
After listing down the duties. The Wage level 1 RFE then asserts, that the position described in the H-1B petition is more complex than a position assigned to a wage level 1 employee .
How do attorneys tackle the Wage level 1 RFE
The first argument attorneys put forth – An entry level wage does not necessarily mean that the position cannot qualify as an H-1B specialty occupation. Moreover, in a specialized field that requires a bachelors degree an occupation assigned with an entry level wage can have complex tasks performed under supervision. Additionally, attorneys also use the Department of Labor’s worksheet to determine the wage guidance. Whether the job requires a bachelor’s degree and up to two years of experience.According to the worksheet,unless the job requires skills that are not encompassed in the O*NET tasks, work activities, knowledge, and Job Zone examples for the selected occupation, the position can still remain in Level 1.
Examples of Complex Wage level 1 jobs
USCIS finds it difficult to argue that an entry level doctor, lawyer or architect cannot qualify for H-1B visa. These occupations need underlying degrees. Additionally, a specialty as a minimum for entry into the profession. A lawyer and a doctor can still perform complex tasks under close supervision. How else can a trainee doctor or a lawyer become an expert? The same logic ought to apply to other occupations such as engineers or computer systems analysts.
What arguments do attorneys use to tackle the wage level 1 RFE?
Below are some arguments and documents which may be helpful to defend a Wage Level I RFE. However, the suitability of the argument depend on individual case. Attorney’s adjust the argument to fit each case.
Wage level 1 Argument 1 : USCIS Misinterprets the Wage Level Rules
One of the key legal arguments carefully analyzes the Department of Labor (“DOL”) Wage Guidance. It essentially states that all positions start with Wage Level I. For entry-level positions and that a position which normally requires a bachelor’s degree (attorneys, doctors, and architects are some clear examples, but there are many more) will have, by definition, an entry-level Wage Level I and just because an employer has hired an entry-level professional at a salary consistent with Wage Level I does not mean that the position does not normally require a bachelor’s degree.
Wage level 1 Argument 2: DOL and not USCIS can determine wage level for an occupation
DOL has the regulatory authority to determine the appropriate wage levels not USCIS . USCIS determines if the position is specialty occupation or not. Hence, a carefully-crafted legal argument can suggest that USCIS is overstepping its authority in determining wage level for specialty occupation.
Wage level 1 Argument 3: Organizational chart and career growth
Attorney’s also include organizational chart which can clearly demonstrate that the position is entry-level and demonstrate the close supervision over the beneficiary by higher-level professional employees. Similarly, for third-party worksites, including an organization chart demonstrating how petitioner will supervise and control the beneficiary at the third-party worksite. Attorneys can also compare and contrast other senior levels for the same job position. Explain the career growth of the employee should he stay and how his salary grows with each career level.
Wage level 1 Argument 4: Prior Hiring History.
Employers can also show the pattern of hiring over the years . When the employer hires for the same (or similar) entry-level position. They would normally require a bachelor’s degree and would offer a similar (consistent with Wage Level I) salary.
Wage level 1 Argument 5: Employment History of the employee
If H1B position is beneficiary’s first job after completing university. Then the entry-level position argument holds good. The argument is combined with other arguments like how an F1 visa student joined in OPT. He/She is currently under training and can enter a full time sponsored position etc.
Wage level 1 Argument 6: Sponsored Position Analysis.
In the Wage Level I RFEs USCIS invites petitioners to submit a letter or other evidence to explain how the position is entry-level. Attorneys draft a detailed letter based on inputs from industry leading experts with deep industry and hiring knowledge. This letter allows an attestation from an expert in the industry assuring the adjudicator should focus on determining eligibility and not make a judgement based on their limited industry knowledge.
A well crafted attorney’s legal argument can indeed get an approval for Wage level 1 RFE. Given the Wage Level I RFE is widespread targeting every known job, the issue could continue for months. We can also expect this to happen next year. In the meantime, attorneys and employers affected by the Wage Level I RFE should carefully draft and submit their arguments. Only time will tell how H1-B visas will evolve.