The H1-B visa category used to be an incredibly reliable visa category with clear guidelines on how a petitioner will be assessed and granted a visa. Unfortunately, there has been some recent confusion with respect to changes in how H1-B applications are scrutinized in the spirit of the recent executive order to “Buy American Hire American.” This has spurred a recent increase in H1-B visa wage level 11 RFEs. If you’re not sure what that is or if you want to avoid it altogether, this post is for you.
The H1-B visa has been affected by the executive order to buy American and hire American. This directive has been expanded and was followed by further directives for the USCIS to:
- Put American workers first. The USCIS announced further measures to detect H-1B visa fraud and abuse in 2017.
- Combat and report H-1B fraud and abuse: This was another program launched in 2017.
- Releasing a memorandum on H1B computer-related positions in 2017.
What this has really meant is that ill-prepared applications are at risk, also known as applications in which the applicant has not provided enough core or perhaps even supplementary evidence to satisfy the USCIS. The H1-B visa conditions are quite clear from the onset and, as such, it is highly likely that a well-documented and evidenced application will not be issued an RFE to begin with.
However, special care must be taken to occupations such as “Human Resources Manager” which may not specify a specialist degree in a specific area but rather a broad spectrum. Where in the past this may not have been heavily scrutinized, now you should be prepared to establish that the occupation requires a degree at that level “in a specific specialty” for entry into the occupation.
The H1-B visa category defines a “specialty occupation” in INA 214(i) for H-1B purposes as an occupation that requires:
- Theoretical and practical application of a body of highly specialized knowledge, and
- 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.
As a petitioner for the H1-B visa, you must ensure that you demonstrate that your higher education or bachelor’s degree is “in the specific specialty (or its equivalent)”. This fact cannot be overlooked by a petition based on just any bachelor’s degree. If you are facing an RFE, then the next step after demonstrating your degree-based eligibility would be to provide supporting evidence that the duties of the position relate to the educational requirement.
Next, it will be prudent to show that the designated wage level is also in accordance with the Department of Labor (DOL) guidelines. In fact, the DOL sets the criteria for the wage level and the United States Citizenship and Immigration Service (USCIS) which checks for factual accuracy. It is the USCIS which will determine if a position is indeed a “Specialty Occupation”. It is, therefore, your responsibility to show this clearly with supporting evidence.
Likely Types of RFEs and How to Approach Them
A quick summary of the possible nature of an issued RFE could be captured in the following scenarios:
The USCIS points to duties indicating that the position is beyond Level 1
This usually puts the burden of proof on the petitioner to prove that the H1-B visa wage level 1 allocated for the “specialty occupation” is appropriate and according to industry norms. The other option would be to submit a new and better-suited Labor Condition Application altogether. However, this would likely be unnecessary if it can be demonstrated that the job is an entry-level position.
USCIS claims that level 1 wage means the position is not a “Specialty Occupation”
These kind of requests are on the rise lately. Since the compensation for the occupation is a Level 1 wage it would mean that the occupation itself cannot be a “specialty occupation”. This is not correct, but there are certain occupations for which you would need to establish that the degree is indeed important to that specific occupation. Moreover, another approach that could be adopted by your lawyer is to disassociate the two elements of wage and occupation (see below).
USCIS could also give a combination of the above.
How Does Wage Level Relate with Occupation?
What needs to be understood with respect to H1-B visas is that the wage level guidelines published by the DOL are actually in favor of awarding entry level 1 wages irrespective of occupation. However, there is no such connection and, in fact, the qualifications necessary for a position define a wage level as well as “specialty occupation” status.
The key point to understand here is that just as doctors and scientists in training can earn a lower wage for an entry-level position, so can other occupations. Having a degree does not automatically qualify someone for a higher wage but rather (as per DOL guidelines) occupational tasks, complexity, and nature of work determine the wage. Here is an excerpt from the DOL guideline:
“The wage level should be commensurate with the complexity of tasks, independent judgment required, and the amount of close supervision received as described in the employer’s job opportunity.”
A highly qualified professional with a specialty occupation can still be supervised on complex tasks. This is essentially the argument that would be made if the USCIS’s objection is that the wage level 1 is inappropriate for the occupation.
Petitioners can look up the listed code on a petition’s accompanying LCA to determine the educational requirements of the occupation being nominated. Supporting letters could also be presented in support of the degree. The petitioner should further thoroughly demonstrate how the described duties of the job make it qualified for a specialty occupation. A letter from an academic professor along with evidence of OPT can be sufficient to establish the fact that the degree is a requirement for the occupation a petitioner is applying to get his or her H1-B for. Industry experts can also be reached to further establish the status of the occupation despite the entry H1-B visa wage level 1.
Finally, the petitioning organization can also include the work of employees of the same designation who are tasked with the duties that the applicant will be undertaking. The point to note here is that if one such H1-B application forced an organization to raise the wage level, then this could have serious consequences. An increase in what the normal wage is for an entry-level position (albeit one that is a specialty occupation) would mean an unexpected labor cost increase.
As such, it is highly unlikely that you will be denied an H1-B if you can prove that the level 1 wage being applied is due to the entry level position’s nature and not due to the skills required to do the job competently.
What You Can Do to Prevent an RFE
Of course, the best way is to work meticulously to avoid an RFE in the first place. This would mean that you prepare a robust petition with corresponding evidence of degree, duty requirements, and industry wage rates for the occupation, academic references, and whatever else that strengthens your case.
Do not assume that you will be given an H1-B just because you have a university degree–the onus is on you to demonstrate your eligibility.
Another approach that organizations should consider is that, where appropriate, petitioners may avoid an RFE by raising the wage level before submitting their H1-B application. An employer that is eager to onboard a foreign applicant may see this as the best way to avoid complications.
How Our Immigration Attorneys Can Help
The Immi-USA team of dedicated immigration lawyers has decades of experience helping people handle difficult situations involving RFEs, H1-B visas, and other immigration and visa-related issues. From filing petitions to dealing with unforeseen obstacles, we will be with you every step of the way.
To get in touch with one of our immigration attorneys, you can contact us by filling out this form and scheduling your consultation today.