Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.
Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.
During the past several months, USCIS has issued several RFEs and some denials on H-1B petitions alleging that the position was not a specialty occupation because the employer selected a level 1 wage. The alleged justification for this assertion was President Trump’s Buy American Hire American Executive Order, and his instructions that only the “best and brightest” foreign workers should be allowed in the United States. We have responded to many of these RFEs with legal arguments that followed the definition of specialty occupation and the Department of Labor Wage Determination Guidance. While all of our cases have been approved this far, USCIS has issued a number of denials across the country, providing a level of uncertainty and concern among employers and beneficiaries of H-1B petitions.
On January 25, 2018, the AAO issued two important non-precedent cases on the level 1 wage issue. The AAO is the appellate body within USCIS that has the responsibility to review decisions appealed by an employer who believes the decision does not properly follow the law and regulations. Many of the denials based upon the level 1 wage analysis were appealed to the AAO. The first two decisions on this issue clarify the policy of USCIS and clearly stated that “There is no inherent inconsistency between an entry-level position and a specialty occupation.” While one case was approved and the other denied, both cases firmly stand for the proposition that the wage level does not define a specialty occupation. The Department of Labor guidelines are the proper source for determining the wage level and the USCIS’s only role is to determine if the wage level assigned to the position is consistent with the employer’s description of the position.
In Matter of G-J-S-USA, Inc., the AAO affirmed the denial of the H-1B petition, but did so only because the Employer’s statement of the requirements for the position are inconsistent with selected wage level. In the second case, Matter of B-C-, Inc., the AAO reversed the denial and ordered the H-1B to be issued. The position of a geotechnical engineer in training was clearly a specialty occupation, and required specialized training and education, but nevertheless was properly assigned a level 1 wage.
Together these two decisions provide a cogent analysis of the issues raised by the level 1 wage challenges to the H-1B classification. Employers no longer need be concerned that the wage level will determine whether or not a position is a specialty occupation meriting an H-1B visa. While the proper wage determination must still be assigned to the position, entry level positions in any occupation can be appropriate.