Latest News: H-1B Level 1 Wage RFE Responses Wikipedia
Abstract: Ever since President Trump took office, the USCIS has tightened its evaluation standard for reviewing the cases. From the review trend of this year, the RFEs issued by the USCIS not only surpassed last year’s, and to everyone’s surprise, a new type of RFE targeting Level 1 Wage has surfaced. Up until now, the American Immigration Lawyers Association (AILA) has received more than three hundred and twenty RFE notice samples and further analyzed 187 of the notices targeting Level 1 Wage.
Today, attorney Hui Zeng, managing partner of Zeng Law Group, PLLC, and a member of the American Immigration Lawyers Association (AILA), participated in the discussion hosted by AILA concerning Level 1 Wage. We have gleaned some of the insights and incorporated into our Level 1 Wage “how to respond” Wikipedia to further help the applicants navigate through the process.
Level 1 Wage RFE excerpt (1st type)
According to the USCIS, the job duties mentioned in the H-1B petition are highly complex, therefore it does not correspond to the “Level 1 Wage” submitted in the LCA. Based on the USCIS’s perception of “Level 1 Wage”, the job duties under the Level 1 Wage are basic, entry-level works that do not require a person of at least a bachelor’s degree or above, and the position is not a specialty occupation.
However, if the applicant thinks that his/her job duties’ complex level exceeds the standard of “Level 1 Wage” by the Labor Department, then the employer needs to submit a certified that exceeds the Level 1 Wage, and this LCA must be certified before submitting the H-1B petition.
Attorney Zeng breaks down the process in the following: If we respond accordingly to the USCIS: Level 1 Wage = basic job duties = not a specialty occupation, then the applicant will have to provide a certified LCA that exceeds the Level 1 wage, and this LCA has to be certified before submitting the H-1B petition. This is non-attainable because no employer will submit Level 1 and Level 2 LCA applications at the same time before April 1, 2017. The best approach is to challenge the perception that “Level 1 wage = basic job duties = not a specialty occupation” as incorrect. Please see below for our response Wikipedia.
AILA data statistics: Out of all the cases received by AILA, 65% of the RFEs fall under this category and many of them were issued by the Vermont Service Center.
Level 1 Wage RFE (2nd type)
The positions representing the “Level 1 Wage Standard” are very basic, therefore the level is interpreted as one that is basic and does not require a person of at least a bachelor’s degree or above to successfully fulfill the duties, and it is not a specialty occupation.
Based on AILA’s data statistics: Out of all the cases received by AILA, 23% of the RFEs fall under this category and many of them were issued by the Vermont Service Center.
Level 1 Wage RFE excerpt (3rd type)
This type of RFE is a combination of the 1st and 2nd type of RFE. According to the USCIS, “Level 1 Wage Standard” positions are very basic. Therefore, the applicant needs to provide evidence proving that the complexity level of the applied position meets the visa requirement, and at the same time it satisfies the Level 1 requirement for basic positions.
Attorney Zeng breaks down the process in the following: If we respond accordingly to the USCIS, we must emphasize the position = complex = meets the Level 1 basic requirement. The applicant needs to provide evidence proving that a basic position does not determine the level of complexity in a position, and vice versa. For example, given the nature of the works performed, positions such as doctors, lawyers, attorneys and such usually have a higher entry standard, therefore the job duties of an entry-level person of those occupations should certainly be complex. Please see below for the response Wikipedia.
AILA data statistics: Out of all the cases received by AILA, 13% of the RFEs fall under this category.
Level 1 Wage Response Wikipedia.
1 The determining factors on whether if a position is entry level are the required experience, education, skills, the need to be supervised, and not by the complexity of the job duties. The applicant can assess his/her wage level by combining the job requirements through Worksheet for Use in Determining OES Wage Level to prove that the entry-level position is irrelevant to the complexity of the job duties.
2 Combining the intention and history of the legislation to fully elaborate: the evaluation standard for wage level is to confirm the wage grade and not to determine if a position is a specialty occupation.
3 For some positions (Job Zone 4 and Job Zone 5) to meet the requirement of basic understanding in the basic positions, it is necessary in obtaining a bachelor’s degree. Such as associate attorneys, junior doctors, etc. We can refer to some AAO cases to confirm this basis.
4 There is no legal and regulation basis in determining whether if a position is a specialty occupation by assessing the levels of the wage level as to how the USCIS assesses it.
5 When responding to the RFE, it is important to fully demonstrate your point of view to ensure if the case is ever appealed, the judge can see all our past arguments and defenses.
We wish all the H-1B applicants the best of luck!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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