H-1B Level 1 Wage RFEs

Requests for Evidence on H-1B Level 1 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.

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 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?

In answer to the RFE, you must emphasize the law 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. 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.

Our firm has successfully responded to USCIS on numerous H-1B Level 1 Wage RFEs that were subsequently approved. We will be happy to assist with yours.

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