January 17, 2018
Minsky, McCormick & Hallagan
In response to several policy announcements made by the Administration in early 2017, U.S. Citizenship and Immigration Services (“USCIS”) increased its scrutiny of H-1B applications and began issuing significantly more Requests for Evidence (“RFE”), particularly for H-1B petitions that utilized a level 1 wage for entry-level occupations on the Labor Condition Application (“LCA”).
To qualify for an H-1B, the position for which the H-1B is being sought must be a “specialty occupation,” and the foreign national employee must actually possess the degree required for the specialty occupation. Pursuant to 8 CFR § 214.2(h)(4)(iii)(A) a specialty occupation is one that meets at least one of the following:
- normally requires a “baccalaureate or higher degree or its equivalent;” or
- baccalaureate degree (or higher) requirement is “common to the industry” or the particular position is “so complex or unique that it can be performed only by an individual with a degree” or
- employer “normally requires a degree or its equivalent for the position;” or
- “nature of the specific duties are so specialized and complex that knowledge required to perform the duties is associated with the attainment of a baccalaureate or higher degree.
These new level 1 wage RFEs typically argue one or both of the following:
- The duties of the position are beyond entry level, therefore a level 1 wage is not appropriate; and/or
- The position is not a specialty occupation because a level 1 wage was used for an entry-level position and an entry-level position cannot be complex or unique enough to qualify as a specialty occupation.
MMH has recently responded to several of these level 1 H-1B RFEs and has found success by submitting the following arguments and documentation:
- Specialty occupations encompass entry-level positions: Specialty occupations inherently include entry-level positions and do not require experience. Nothing in the statute or regulations states that entry-level positions cannot also be considered specialty occupations or that entry-level positions need to be more complex or unique in order to qualify as specialty occupations. Each specialty occupation requires a specific degree for entry into the occupation, and each year, new university graduates enter these occupations at the entry level. Therefore, the suggestion that a position cannot be deemed a specialty occupation with a level 1 wage is illogical and assumes that all specialty occupations not only require a degree but also experience. However, this is neither required by statute or the regulations and is not supported by case law. For example, doctors, lawyers, dentists, and professors all start their careers at the entry level, and nothing in the law requires that these entry-level positions be more unique or complex in order to qualify for an H-1B.
- Detailed job duties: We typically provide a letter from the employer outlining the complexity of the duties required for the position, the percentage of time spent on each duty, and explaining why each duty requires at least someone with a Bachelor’s degree in a specific field. It is also helpful to provide an explanation of the specific skills typically acquired in the requisite degree program’s coursework that relate directly to these duties.
- Expert letters from professors in the field: We have submitted expert opinion letters from university professors teaching in the field of study required for the specialty occupation, stating that the industry requires at least a bachelor’s degree in a specific field and/or that the position is so complex that it requires at least a bachelor’s degree in that specific field.
- Employer job postings: We have included previous and/or current job postings by the company for the same position if those postings demonstrate the company requires at least a Bachelor’s degree in the required field of study.
- Employer’s past hiring practices: We have submitted the company’s hiring records and/or payroll records for individuals who work or have worked in the offered position and resumes or LinkedIn profiles of those individuals to demonstrate that they have a bachelor’s degree in the required field and that the employer actually requires such degrees for entry into the position.
- Third party job postings: We have provided evidence that other employers also require the requisite degree for entry into the position by providing copies of similar job postings by similar companies found online.
- Competitor statements: We have provided letters from direct competitors of the company stating that they also require at least a Bachelor’s degree in that specific field for the same position.
- Work Product: We include documentation of the H-1B worker’s work product if it demonstrates that the position is so complex that it requires a Bachelor’s degree in a specific field.
- DOL’s Occupational Outlook Handbook (OOH) and O*NET: We submit the OOH and O*NET description of the position if it demonstrates that the position typically or usually requires at least a Bachelor’s degree in the required field of study.
- Organizational chart: We submit an organizational chart to demonstrate that the position does not oversee employees and is, in fact, an entry-level position.
While we do not specifically know which of these individual arguments and submissions resulted in an approval, we do know that a combination of these arguments and submissions have overcome the USCIS’s level 1 RFEs and have led to H-1B approvals. We also anticipate that we will be seeing many more of these RFEs over the next year, so employers should prepare to maintain and present such documentation in the event that it is necessary.