Strategies for Combating Level 1 Wage RFEs for H-1B Petitions
RFEs Addressing Wage Level: Illogical and Inappropriate
We addressed in the previous article the rising trend of requests for evidence (RFEs) issued due to a H-1B specialty occupation petition's indicated Level 1 (and increasingly Level 2) wage. Now it seems appropriate to analyze the various possible strategies for responding to these RFEs, of which there are many potentially viable actions a petitioner and/or legal counsel may seize upon.
Each and every argument United States Citizen and Immigration Services (USCIS) utilizes in justifying its use of wage levels to determine an H-1B position's eligibility as a specialty occupation is propped up by flaws that, if appropriately expounded upon, may assist in obtaining a favorable adjudication. These strategies may be helpful in persuading USCIS adjudicators that wage levels should not be decisive nor is their use of them is in any way appropriate concerning their evaluation of the position for H-1B eligibility.
Common concerns of USCIS with Level 1 wages in H-1B adjudications as raised in RFEs include assertions that:
The Level 1 wage is inappropriate considering the complexity of job duties.
TheLevel 1 wage suggests that the position is entry-level and thus not a specialty occupation.
Countering the Wage Level RFE
"The Level 1 Wage is Inappropriate Due to the Complexity of the Job Duties"
Within its rationale, USCIS cites Department of Labor (DOL) Wage Guidance promulgating that “Level 1 (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation” and that such employees “perform routine tasks which require limited, if any, exercise of judgment.” According to this standard of reasoning, USCIS adjudicators may assert that the position proffered within the petition in question is of such complexity that it does not appropriately correspond with the presented Labor Condition Application (LCA), or, in other words, the Level 1 wage.
It is in these cases that the petitioner is asked to provide additional evidence to convince USCIS that the petition is indeed supported by a suitable LCA and appropriate wage level.
In doing so, it would be prudent to provide the full context of the DOL’s Wage Guidance, which states: “[a]ll prevailing wage determinations shall start with an entry level wage and progress to a wage that is commensurate with that of a qualified, experienced, or fully competent worker only after considering the experience, education and skill requirements of an employer’s job description (opportunity)." (see 8 CFR §656.40) This is to say that it is not the complexity of duties that determines a wage classification, but rather the qualifications necessary for the position. In other words, job duty complexity as an argument simply doesn't follow the given USCIS premise of DOL Wage Guidance.
Another argument in justifying a Level 1 wage would be to show that the beneficiary meets the occupation's basic necessary education and experience requirements. The job duties of many specialty occupations, even if complex, can be sufficiently addressed by the university education if that is all that is required by the specialty occupation. Furthermore, it is the basic understanding of the relevant job duties afforded by the beneficiary’s education that so classifies the position as one of a specialty occupation, thus meeting the H-1B classification's statutory requirements. The Level 1 wage in such cases is therefore appropriate.
Petitions in Job Zone 5 occupations in particular should give special attention to addressing the extensive requirements of such positions. As described by O*Net, most of these positions require graduate school as well as more than five years of experience in many cases. It thus stands that, even though such positions may be entry level, status as a specialty occupation as well as the Level 1 wage (the two of which should regardless never be mutually exclusive) would still suitably correspond with such an application.
Finally, USCIS's discretionary scope in such matters is limited to determining whether or not the "[labor condition] application involves a specialty occupation as defined in [INA §214(i)(1)]” (see 8 CFR §214.2(h)(4)(i)(B)(2)) and that the applicant is so qualified as to perform the specialty occupation. No statute mentions any authorization of USCIS's ability to evaluate the appropriateness of a position's corresponding wage level, the term "wage level" not even appearing within in 8 CFR §214.2(h), nor there is any mention of LCA within the specialty occupation criteria of 8 CFR §214.2(h)(4)(iii)(A).
Therefore, it is clear that USCIS has been given no proper authority to evaluate wage level, its authority instead confined to establishing whether a position is a specialty occupation and the applicant's eligibility to perform it. Moreover, it is the qualifications necessary for the position that determine a wage level's suitability, not the complexity of job duties. Whatever qualifications are necessary have already been deemed sufficient preparation in this regard, thus making such job duty complexity irrelevant and outside USCIS's purview.
"The Position is not a Specialty Occupation because the Wage Level Indicates that it is Entry-Level"
Of the positions mentioned under 8 CFR §214.2(h)(4)(ii) as specialty occupations ("architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts"), each requires certain degrees for entry into the occupation. It should be additionally noted that specialty occupations include any occupation requiring a bachelor’s degree or its equivalent in a specific field of study, the above examples being by no means exhaustive.
Therefore, it does not follow any sort of logic that a position's classification as entry-level with its accompanying Level 1 wage should impede on its eligibility as a specialty occupation. Would it appear reasonable that a physician out of college should not be considered a specialty occupation for the sole reason that he or she joined the occupation at the logically necessary entry-level? Of course not, it is the education and accompanying skills required that so designate such a position.
There are also cases that specifically mention this fact of life, such as a footnote within Matter of P-D-S, stating: "...it is important to note that a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry" and "...a position's wage level designation may be a consideration but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act." (See Matter of P-D-S-, ID# 283927 (AAO July 31, 2017) at FN 10)
Experience therefore remains outside the necessary prerequisites in classifying a position as that of a specialty occupation. Any intention of Congress to provide otherwise is absent in the statutory regulation of the Immigration and Nationality Act (INA), so USCIS's ability to stipulate to the contrary cannot be concluded, neither would such requirements conform to any sort of rationality of reason. The wage level should therefore solely be a means of determining the prevailing wage to be paid to the beneficiary, a process that is overseen and executed by the DOL, not USCIS.
Arguments Applicable to any H-1B Wage Level RFE
The Misguided Application of the Four-Tiered Wage Level System
The tiered wage system was only ever meant for determining an occupation's wage structures, not the eligibility for specialty occupations. In fact, the current four-tiered wage level system has only been in place since 2005 - prior to that year there were only two wage levels. Then the Consolidated Appropriations Act was enacted, requiring the government to provide at least four levels, with the DOL subsequently issuing its new Wage Guidance.
Furthermore, the current four-tier system was conceived in order to allow for more accurate wage determinations by analyzing job requirements such as education and experience. Their purposes are solely those of definition and those definitions' inherent wage determinations, differentiating between professional, nonprofessional and unskilled occupations.
It also follows that wage levels are a necessary tool of employers in creating an internal hierarchy of employee status (i.e. entry-level, mid-level, senior-level). As such, an employee's corresponding wage level does not contribute to the professional or specialty nature of the occupation itself, that simply depends on the qualifications required of the occupation.
Positions may Inherently be Considered Specialty Occupations Independent of Accompanying Wages
As evidenced by the INA, some positions are inherently specialty occupations regardless of wage, the legislation itself mentioning such examples as architects, engineers, lawyers, physicians, surgeons, and academic teachers (see INA §101(a)(32)), a list that, again, is by no means inclusive.
Moreover, positions may be argued as those considered a specialty occupation as based on the employer's normal requirements in order to be qualified for the position, although the simple reason that a degree of a specific field is required by the employer and industry in question should already be sufficient in settling such a question. Most interestingly, an accompanying Level 1 wage should even be construed as proof of a position's specialty occupation status by USCIS's own definition, as 8 CFR §214.2(h)(4)(iii)(A)(1) states that the first H-1B criterion is satisfied by the requirement of a degree for the position's "entry."
Wages Lie within the DOL's Authority, Not USCIS's
Determining wages is the jurisdiction of the DOL, the scope of USCIS's duties regarding H-1B applications only being the ascertaining of the position's classification as that of a specialty occupation and the applicant's qualification to perform it. Petitioners responding to such RFEs should therefore argue that the utilization of such wage level standards are practices of genuine overreach by the agency.
Wage levels are no more than a mathematical calculation, and the USCIS adjudicator should be made aware as to DOL rules pertaining to the prevailing wage process. Actions on this part may consist of a wage level analysis and excerpts of the 2009 revision of DOL Guidance as well as the H-1B and PERM regulations addressing prevailing wages levels as evidence that the wage determination is outside the USCIS purview, an authority that should and does remain exclusively with the DOL.
The Necessary Standard of Proof
To put it briefly, as that is all that is really necessary, the USCIS Policy Memorandum, “Requests for Evidence and Notices of Intent to Deny,” (PM-602-0085, at 2 (June 3, 2013)) states that “the [petitioner] must prove it is more likely than not that each of the required elements has been met.”
Therefore, even if there is some level of doubt on the adjudicator's part, the petitioner need only provide as much proof to demonstrate such eligibility as to the position's specialty occupation status as to be more likely than not to be true. Utilization of wage level should not be considered necessary for such an application to reach this standard.
The Conclusion for Now
USCIS is overstepping its authority in using the wage levels in evaluating whether a certain position qualifies as a specialty occupation under the H-1B visa program. Its justification for doing so simply fails against every test of logic and statute.
In another post we will further dive into specific actions that may be taken in preparing an effective RFE response, as well as preparing for these new apparent standards in general.
For now, the H-1B application process has become as complicated as ever. Therefore, it is absolutely necessary that any prospective beneficiaries and petitioners consult with legal counsel before proceeding with the H-1B visa in order to weigh all their options and devise the best strategy available.