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The Floodgates of H1B RFE (Request for Evidence) are opened

Here is the scoop with this year’s H1B filing:

The RFEs are pouring in. Apparently, USCIS is going after jobs with entry level (Level 1) prevailing wages. The most impacted occupations appear to be computer related: analysts, programmers, software developers, etc. Other jobs are getting hit as well, most notably business related positions such as business analysts and marketing specialists. Some traditionally “slam dunk” engineering positions also got challenged.

What is a RFE?

A Request for Evidence (“RFE”) is a request issued by the USCIS to petitioners for green card, citizenship, and visa applications. A RFE is made when an application/petition is lacking required documentation/evidence or the adjudicating officer needs more documentation (additional evidence) to determine an applicant's eligibility for the benefit sought. The request will indicate what evidence or information is needed. The notice will explain where to send the evidence and will give the deadline for response. The application or petition will be held in suspense during that time. 

What is entry level (Level 1) wage?

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Helpdesk Center (NPWHC), or by accessing other legitimate sources of information such as the Online Wage Library, maintained by the Department of Labor, Bureau of Labor Statistics (BLS).

For each occupation, there are 4 levels of wages commensurate with experience, education, and the level of supervision, ranging from Level 1 (entry level) to Level 4 (fully competent).

Per NPWHC Guideline, Level 1 (entry) 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.  The tasks provide experience and familiarization with the employer’s 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. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Why all of sudden so many RFEs?

On April 3, 2017, USCIS made available a new Policy Memorandum, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.” The new Policy Memo implements a significant change to the adjudication of H1B petitions for computer programming positions, AFTER the cap subject new H1B petitions have already been filed on April 1, 2017.

Written in an ambiguous manner, the Policy Memo does not establish a standard for adjudication. Rather, it instructs USCIS officers not to follow the existing policy standard dated December 22, 2000.

Two main takeaways from the April 3, 2017 Memo:

The Occupational Outlook Handbook (OOH) is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation.

A designation that a position is Level 1, entry level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. This provides a basis to deny many pending cases.

Practical impact of the new Policy Memo

Even though the Policy Memo only discussed computer programming jobs, its impact extended to a wide range of occupations such as entry level business related positions, as well as some traditionally “slam dunk” positions in engineering.

Four ways to qualify as specialty occupation

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:

1. A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.

2. The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

3. The employer normally requires a degree or its equivalent for the position; or

4. 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.

Practice tips

Positions designated as Level 1 wage contradict the 4th criterion (“specialized and complex nature of duties” mentioned in the preceding section, because Level 1 wage is defined as beginning level employees performing routine tasks under close supervision that require limited, if any, exercise of judgment.

For many computer related positions, the 1st criterion (“a bachelor’s or higher degree normally the minimum entry requirement”) mentioned in the preceding section cannot be relied upon. For example, according to the OOH, “Software developers usually have a bachelor’s degree, typically in computer science, software engineering, or a related field. A degree in mathematics is also acceptable.” USCIS is now asserting that this language “clearly shows that anyone with a wide variety of educational background can perform the duties of a Software Developer. As such, there is no standard for how one prepares for a career as a Software Developer and no requirement for a degree in a specific specialty. The requirements appears to vary by employer as to what course of study might be appropriate or preferred.”

Therefore, it appears that for many Level 1 wage occupations, two criteria are left to work with:

The degree requirement is common to the industry;

The employer normally requires a degree or its equivalent for the position.

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DISCLAIMER: Information contained on this site is intended to educate the general public only and does not constitute legal advice. Readers are encouraged to seek advice and counsel from a law firm with experience in immigration and nationality law.