H-1B Wage Level 1 RFEs

A request for evidence (RFE) is issued by the USCIS to request additional documents and/or information to make a final determination for a case. A RFE can be issued either due to lack of required initial evidence or if the USCIS officer requires additional documentation and/or evidence to determine the applicant’s eligibility for the benefit sought. The RFE will specify the documents or supplemental evidence required to complete the application or petition. The RFE includes both a strict deadline (generally 84 days) and location for submission of the requested evidence and/or documentation. The petition or application will be “held in suspense” until the deadline is met.

This March, USCIS released a memo questioning if a “computer programmer” would qualify for H-1B based on just the information contained in the Occupation Outlook Handbook (OOH), especially in cases where the beneficiary is being offered Level 1 wages. The policy memo, instead, instructs the employer to provide other evidence to establish that ‘computer programmer’ is a specialty occupation. Following the release of this memo, USCIS issued RFEs for almost all H-1B petitions filed for positions with Level 1 wages.

Entry Level Position and Level 1 Wage

Every H-1B petition is filed with a Labor Condition Application (LCA) on which the employer must choose a level wage for the position.  The lowest level wage is Level 1 and the highest is Level 4.  As per National Prevailing Wage and Helpdesk Center (NPWHC) worksheets, the wage level is determined by the education, experience, supervision, and skills required to perform the duties of the position.  Every position starts with Level 1 wage and depending upon the requirements of the position, NPWHC has the ability to issue a prevailing wage as high as Level 4.  However, in its RFEs, USCIS has failed to take into account these guidelines from NPWHC and has issued RFE without regard to the requirements of the position for which the H-1 B was filed for.

Conclusion

This upswing in the wage level RFEs is result of new administration’s BAHA (Buy American Hire American) policy. Employers filing the H-1B should take a close look at the requirements of the position before choosing the wage level.  Also, those responding to the RFE must closely analyze the requirements of the position and the regulations and address the issues raised in the RFE. Please contact our office to schedule a consultation if you or your employer needs assistance in responding to Wage Level 1 RFE.