Tips for Analyzing Wage Level 1 RFEs

Following the release of a memorandum in March 2017 related to H1B petitions filed for computer programmers, the United States Citizenship & Immigration Services (USCIS) has been issuing requests for evidence (RFEs) on the majority of H1B petitions accompanied by labor condition applications (LCAs) that select wage level 1. While the IT consulting industry has been hit hard by this trend, the RFEs are being issued to petitions in a broad spectrum of professions.

Background on Level 1 RFEs

The recent trend in wage level 1 RFEs began when the USCIS issued a policy memorandum on March 31, 2017, questioning whether positions classified with the computer programmer occupational code qualified as a specialty occupation. This policy memo stated that computer programmers should not be assumed to be in a specialty occupation position. Further, the memo instructed adjudicators to examine the wage level when determining whether a position is a specialty occupation. More details on the memo are available in the MurthyDotCom NewsBrief, Overview of USCIS Memo on H1B Petitions for Computer Programmers (12.Apr.2017).

The RFEs are also a byproduct of President Trump’s April 18, 2017 “Buy American, Hire American” executive order. This order specifically discusses the need for reform within the H1B program, and calls for the implementation of policies that will cause only the highest-paid and most-skilled foreign workers to be granted H1B status.

Level 1 Wages Intended for Entry-Level Positions

An employer petitioning for an H1B worker must file an LCA with the U.S. Department of Labor (DOL) before submitting the H1B petition to the USCIS. On this LCA, the employer must choose a wage level for the position. This wage level is generally determined by the education required for the position and the years of experience required to perform the job duties. Wage level 1 is defined by the DOL in its prevailing wage determination and policy guidance (PWD policy guidance) as follows:

“Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.”

Wage Level 1 positions are intended for individuals just entering the occupation. Every occupation has an entry-level component, and will have different requirements for an entry-level position. Whether a position is entry-level will depend on a number of factors including the required education, experience, and job duties. The higher the requirements for the position, the higher the wage level should generally be.

Analyzing USCIS Interpretation of Policy on Wage Determination

In many of these recent RFEs, the USCIS has argued that the job duties provided in the petition are too complex to be considered entry-level, involve the exercise of judgment, and are not performed under close enough supervision, and are therefore not properly classified as wage level 1 positions. In conjunction with this, the USCIS has also argued that positions that pay a level 1 wage are not complex enough, and therefore cannot qualify as specialty occupations for H1B purposes.

According to the PWD policy guidance, however, a wage level determination is made by “selecting one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational requirements [by reviewing the] tasks, knowledge, skills, and specific vocational preparation (education, training, and experience) generally required for acceptable performance in that occupation.” Further, the PWD policy guidance requires the consideration of the proffered position’s “specific vocational preparation” (SVP) level and its job zone, along with the employer’s job requirements when determining the appropriate wage level for the position. In these RFEs, however, the USCIS has failed to take into account the above guidance and instead looks only to the job duties.

The PWD policy guidance instructions, along with the O*Net summary report for the specific occupational classification, should all be considered when determining what is appropriate as normally required for entry into a field of work. Further, the PWD policy guidance also includes in appendix D a list of education and training codes for professional occupations (ETC), which indicate the typical level of education required for entry into the position. In its RFEs, however, the USCIS has largely failed to account for all of the above factors when assessing the choice of wage level.

Understanding PWD Policy Guidance and Related Information in Analyzing Wage Level 1 RFEs

Among the issues to examine when analyzing a wage level 1 RFE is the PWD policy guidance and the government’s failure to consider all relevant factors when looking at the position. The petitioning employer may wish to also closely review the SVP, job zone, and ETC code for the SOC code chosen for the position on the LCA.

How useful this may be will largely depend on the SOC code that was originally chosen for the position. For example, the SOC code 15-1061, database administrators, falls within SVP level 7 and job zone 4. As a result, the normal minimum requirements for entry into the position could be as high as a bachelor’s degree and up to two years of experience. Further, it is an ETC code 5 position, meaning that a bachelor’s degree is normally the minimum requirement for entry into the position. An analysis of each of these factors can be used to argue that the position, though entry-level, is still a specialty occupation, as a bachelor’s degree is normally required for entry into the position. It is important to note that, depending on the SOC code, one or more of these forms of evidence may not be applicable in each case.

Conclusion

The recent trend in wage level 1 RFEs for H1B petitions is directly related to the shift in enforcement priority and policy implementation under the new administration. Each of these RFEs must be analyzed and addressed as is most appropriate for the facts of the case. Subscribe for the free MurthyBulletin for future updates on this and other immigration matters.

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