H-1B Level 1 Wage RFEs

Requests for Evidence on H-1B Level 1 petitions

What is H-1B Level 1 Wage RFE?

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.

The main reason the USCIS issued RFEs for these H-1B petitions was their erroneous adjudication of the law that started after the Trump Administration replaced the head of the agency. Under the new guidance, which was not published anywhere, USCIS officers have the notion that if an employer offers a Level 1 wage to an employee, it is an indication that the position may not be a “specialty occupation”. In other words, to a USCIS officer, being of the lowest wage level means that the position may not require a bachelor degree at minimum.

However, this is not what the H-1B laws and regulations say. 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.

How do you successfully overcome an H-1B Level 1 Wage RFE?

Answering a request for additional evidence successfully requires a full legal analysis of the case and coming up with great legal strategies to overcome a negative opinion of the immigration officer. Hiring an H-1B visa lawyer who is knowledgeable and well-versed in many types of H-1B visas is very important in order to successfully overcome these RFEs. The strategy will depend on what occupational classification your H-1B visa case was filed under and also what wage is offered to the foreign national, what type of company employs the foreign national, and other considerations. In answer to the RFE, your H-1B visa attorney must emphasize the law and regulations around the H-1B visa and prove that the position for which you filed an H-1B petition requires at minimum a specialty bachelor’s degree for entry into the profession.

For example, it does not make sense that a doctor who just got license to practice medicine and is paid the entry level wage for her profession is not practicing a “specialty occupation” because to enter into the occupation of a physician, one must graduate from a professional degree program of doctor of medicine and go through residency. Clearly an entry level physician would make less than what a surgeon with 20 years of experience would make, even though both positions are within the same occupational classification. Level 1 wage or a beginning-level wage paid to an employee signals only that the position is entry level – it should not have anything to do with whether the position requires a degree or not. Even an entry level attorney will need considerable supervision in the first few years of practice, yet he or she is still entering into a profession that requires an advanced degree as a threshold to enter into that occupation. This is just one example that allows to explain to a USCIS officer how to apply the law correctly and get your case approved even if you are offered an entry level wage. 

Should I Hire an H-1B Visa Lawyer to Respond to a RFE?

Absolutely yes! You should hire an H-1B visa lawyer to respond to a request for additional evidence. Would you ask yourself if you need to hire a surgeon to do surgery that you need? The problem with an RFE is that the USCIS officer already has a negative bias in your case and doubts whether your H-1B visa case should be approved. If you do not respond adequately and completely and give even more evidence that is requested, your case will get denied. AAO appeals are even more costly and take months to complete and you are not allowed to submit additional evidence in support of your appeal. Also, while your case is on appeal you lose valid status. You only gain it back in retrospect if you win the appeal, and a very low percentage of cases can be won on appeal. When you respond to the request for additional evidence, now is your chance to add all the evidence you can in order to ensure that you case can be approved. The good news is that you can hire a good H-1B visa attorney to prepare a good strategy for you and to respond appropriately to the USCIS issues raised in the RFE. Your H-1B visa lawyer will give you a complete list of documents to obtain in order to respond to the RFE, then draft the response to the RFE and try to overcome the objections. 

Another example is that many first time H-1B visa employees are students in F-1 OPT status who have recently graduated from a degree program. In this case, it does not make sense to pay a high wage to those employees that are entry level who are just out of school. In some positions there is a substantial difference in pay that is offered to entry level employees versus level 2 wage which is a proficient and independent employee. In some cases, it does not make sense for employer to pay the higher wage because their wage ranges vary with experience levels. 

Weinstock immigration lawyers has H-1B visa attorneys who have successfully responded to USCIS in many requests for additional evidence including numerous H-1B Level 1 Wage RFEs that were subsequently approved. Our immigration lawyers have overcome literally all of USCIS’ objections and issues in many requests for additional evidence that have been issued over the past 20 years. If you have an H-1B visa case, please call our office today to schedule a consultation and discuss what is the best strategy for you to respond to the H-1B visa RFE. Our immigration attorneys will be happy to assist with yours and do our best to get your case approved.

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