Specialty Occupation RFEs for H-1Bs: Are level one wages special enough?

The true case examples used below are used for illustration purposes. Case results depend upon a variety of factors unique to each case and case results do not guarantee or predict a similar result in any future case undertaken by a lawyer.

In this post, we wrote about several current processing trends for H-1B petitions. Although we wrote that article last year, all of these points still apply. Point #2 is about the H-1B position being specialty occupation.

Since posting that article last year, a new trend has come to our attention in connection with specialty occupation RFEs. More specifically, in some cases where the employer has used a level one wage for the prevailing wage, USCIS has issued an RFE stating that “wage level 1 positions are typically not specialty occupation in nature.” Their logic for this assertion is that level one wages are for positions that are entry level, require no or almost no experience, and require limited, if any, exercise of judgment (this is per the Department of Labor’s Prevailing Wage Determination Policy Guidance).

We have successfully responded to such RFEs by making a few different arguments. First, in each case for which we received this type of RFE, the position was one for which the Occupational Outlook Handbook specifically says that a minimum of a bachelor’s degree or higher in a specific field of study is required. Therefore we pointed directly to this source to support the argument that a bachelor’s degree is in fact unequivocally required for entry into the profession (the argument was more detailed, but this was the gist of it). Second, we argued that it is inappropriate to make the categorical statement that a position with a level one wage is not a specialty occupation position. If that were the case, no entry-level doctor or lawyer, for example, would be eligible for an H-1B position.

While these arguments were successful for the particular cases we had, all cases are different, and these results do not guarantee or predict a similar result in future cases. The lesson here is that while a level one wage may absolutely be appropriate for some positions, the employer must take care to select the appropriate wage level in keeping with the Department of Labor guidelines, and if level one is selected, the employer may need to be prepared to defend it in an RFE response.

Do you need assistance with an H-1B filing or other employment-based or family-based immigration matter? Please contact us at 804-396-3412 or info@sumnerimmigration.com for more information!

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