H-1B Level 1 Wage Issues: USCIS is Using DOL’s Wage Level to Determine "Specialty Occupation" Status

A recent and troubling development in H-1B visa adjudication concerns wage levels for each occupation. Beginning June 2017, the legal community began to notice an unprecedented pattern of requests for evidence (RFEs) being issued in adjudication of H-1B specialty occupation petitions. Rather than focusing on other common RFE scenarios, such as the duties of the occupation not being complex enough or questioning the employer-employee relationship, this year USCIS began to target the wage level for each job.  Specifically, the RFEs issued in 2017 focused on Level 1 and more recently Level 2 wages for the positions offered, questioning whether these "lower" wage levels were indicative of non-specialty occupation employment.

This signifies a shift in policy of which its significance cannot be disregarded, and one that is unsupported by reason or statute.

Classes of RFEs being Issued for Wage Level 1

In general, these RFEs usually assert claims that either the Level 1 wage offered to the beneficiary is (1) not appropriate given the complexity of the job duties or (2) that the Level 1 wage level indicates an entry-level position and is therefore not a specialty occupation. Both of these assertions are erroneous in their reasoning, but the second is especially misguided for the reasons that will be stipulated in this article. 

As reports of these kind continued to surface, the American Immigration Lawyers Association (AILA) issued a Call for Examples in the effort to collect a sizable sample of wage level RFEs and thus proffer an informed analysis of their typical substances. Having collected over three hundred as of late September of 2017, it was able to categorize three different types of these Level 1 RFEs:

1. Duties Indicating that the Position is Beyond Level 1 (65% of RFEs reviewed)

   • USCIS may claim that the duties demonstrate a position that is beyond entry level and that therefore the petitioner has not established that the petition is supported by a correspondingly certified Labor Condition Application (LCA). These RFEs generally place the burden on the petitioner of thus supporting that the Level 1 wage is appropriate for the position or, in some cases, to submit a new better suited LCA (if certified before filing). The Vermont Service Center (VSC) was more likely to issue this type than the California Service Center (CSC).  

2. The Level 1 Wage Indicates that the Position is not a Specialty Occupation (23%)

   • In cases in which USCIS claims that the position is not a specialty occupation as signified by its Level 1 wage, the petitioner must respond by offering further justification of the offered position's specialty occupation status. This RFE is more typically issued by the CSC than the VSC.

3. A Hybrid of the First Two Categories (13%)

   • USCIS is claiming in this type of RFE that the position's duties are beyond entry level and that the Level 1 wage indicates a non-specialty occupation simultaneously. Therefore, the petitioner must demonstrate that the Level 1 LCA is truly appropriate for the position.

Other Discernible Patterns

A few other patterns emerged regarding these wage level RFEs:

• The RFEs were overwhelmingly applied in regards to H-1B cap cases (83%).

• The RFEs are mostly being applied by the VSC rather that the CSC, though it should be noted that such RFEs by the CSC have been growing. Only 2% of the examples analyzed were issued by the Nebraska Service Center (NSC).  

• The RFEs have not been exclusive to any of the particular O*Net Job Zones.

  • It should be noted that Job Zone 4 occupation RFEs usually challenged whether the position was a specialty occupation or whether a Level 1 LCA is appropriate while Job Zone 5 RFEs tended to challenge whether a Level 1 LCA was appropriate to the position.

• Off-site, remote or third-party employment did not increase the likelihood of a Level 1 RFE response. However, some RFEs did claim that employment situations of these natures signified that the employer could not provide the degree of supervision required for Level 1 positions.

Background Leading Up to the Emergence of Wage Level RFEs

USCIS 2017 Computer Programmers Policy Memo

On March 31st, 2017 USCIS announced in a memo its rescission of its "Guidance memo on H-1B computer related positions.” The newly effective memorandum officially reversed previous policy instruction by stipulating that computer programming positions should no longer be considered specialty occupations as a general rule. In addition, it also issued guidance to adjudicators that they should consider the wage levels on LCAs when evaluating whether or not such positions qualified as specialty occupations. 

While nevertheless significant, it was believed that such instruction by the "2017 Guidance Memo" would be constrained to positions within computer programming. However, it seems that this guidance has seemed to spread to all H-1B adjudications.

Currently, USCIS had not made any progress on clarifying its official policy stance as to wage level RFEs other than that it continues to adjudicate petitions on a case-by-case basis as guided by each's relevant factors and the guidance available to adjudicators. 

The Current Administration

A number of other developments and factors regarding the current administration's attitude on immigration could be observed as instrumental in the development of the current circumstances Level 1 wage (and increasingly Level 2) H-1B applicants are facing.

Perhaps most important is the "Hire American and Buy American" Executive Order signed by President Trump on April 18th, 2017. In the administration's efforts to protect American workers from competition, this order directs the increasingly earnest and staunch regulation and enforcement of laws overseeing the entry of foreign workers into the United States employment-based immigration system.

The H-1B program is a particular emphasis of these efforts, and USCIS has reported its cooperation with the order through its ongoing development of changes regarding the agency's rule-making, policy memoranda, and operational processes. While the "2017 Policy Memo" preceded this order, its subsequent spread may in part be a consequence of the administrative action. Furthermore, the crackdown on the H-1B program is only expected to get tougher as time goes on.

What to Make of This

In separate posts we will describe in detail how USCIS is overstepping its bounds in terms of this policy shift, as well as the different arguments and strategies that can be made in combating this new class of RFEs. 

For now, it seems needless to say that all individuals seeking employment-based travel to the U.S. keep this facet of the attack on H-1B's in mind, and consult legal counsel in careful preparation for how one should best approach the current American immigration process.