Case Study: H-1B RFEs for Level 1 Wages Successfully Overturned

In the past few years of H-1B cap-subject seasons, a USCIS approval trend has emerged that calls occupations set at level one wages into question.  Instead of approval, these cases receive RFEs. The reason is because adjudicators assume that just because a job is set at level one wages it’s an entry-level position.  Entry level positions in some career tracks do not require a minimum of a US bachelor’s degree or higher for entry into the position.  USCIS claims that because the job does not require a minimum of a US bachelor’s degree or higher or its equivalent, it does not meet the H-1B definition for specialty occupation, which an H-1B beneficiary must hold in order to qualify for this visa.  However, many of these instances actually DO require a minimum of this advanced degree in MOST CASES but not all.  The job that has taken the hardest hit is computer programmers making level one wages, but this is not the only position that has been called into question. Last year, we worked with clients who received RFEs for level one wages, which often arrived as a double RFE paired with the specialty occupation issue.  USCIS claimed they were either A) not making the prevailing wage for the job, as per H-1B requirements, or B) the job was not specialized. We were able to get these RFEs answered with a 90% success rate.  The beneficiary and sponsor must provide as much information as possible about the job and its duties, as well as the company’s past hiring practices and industry standards for what is required for entry into the position, and an analysis of the factors that went into setting the wage level.  Oftentimes, new hires fresh out of college will require a high level of training and supervision, which effects their pay grade.  Since one of the goals of the H-1B program is to attract bright foreign students to US schools with the option of staying to work after graduation, this is the situation of many H-1B candidates.  Then, an expert in the field writes an opinion letter that analyzes the information provided and lends an opinion based on their extensive field experience that covers the wage level and the specialty occupation.  Expert opinion letters written by professors with minimal field experience have been rejected by USCIS.  The RIGHT expert must have a great deal of experience WORKING IN THE FIELD of the H-1B job, beyond simply instructing in the subject.