H-1B Level 1 Wage Denials

How to Respond to Denials of Level 1 H-1B Petitions

During this most recent H-1B cap year, USCIS has issued tens of thousands of Requests for Additional Evidence, known as RFEs, for new H-1B cap petitions. The majority of these petitions were filed for people in student status who recently graduated and whose employers are filing for their H-1B visas for the first time. Many of these H-1Bs were denied, and now is the time to file appeals or Motions to Reopen to reverse the denials.

The main reason USCIS denied these petitions is political, stemming from the Trump Administration replacing the head of the agency. Under new guidance, USCIS officers assumed that if the employer offered a Level 1 wage to the employee, the position may not be a “specialty occupation”. Under the presumption, USCIS decided that the position may not require a bachelor degree at minimum and therefore does not qualify for H-1B.

This is simply not true according to H-1B laws … 

Each position’s wages, non-professional and professionals alike, are divided into 4 levels by the Department of Labor (DOL). These start with Level 1 wages, for entry level positions into the occupations – employees who are closely supervised, and who exercise limited judgement. Wage Level 2 requires the employees to exercise more judgement. Levels 3 and 4 are for experienced, advanced personnel demonstrating mastery for their occupation.

In the denial decisions USCIS issued, the officers state that if an employer offered a beginning level I wage to an employee, they assumed the position does not require a degree and is therefore not a specialty occupation. This is, however, an absurd presumption: For instance, even an entry level attorney needs considerable supervision in the first years of practice, yet their profession still requires an advanced degree as a threshold.

Our attorneys have achieved successful appeals and Motions to Reopen in many H-1B visas denials handled by other law firms. Contact us and we will be happy to help you challenge and reverse a denial!

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