How to Respond to "Level I Wage" H-1B Requests for Evidence

Have you received a formal Request for Evidence from USCIS regarding your H-1B application?  Is it questioning why Level I wage was used in the Labor Condition Application (LCA)?   If so you are not alone.  Thousands of RFEs have been issued on this particular issue in the past few months.

"Buy America Hire American" Immigration Policy

The new wave of Requests for Evidence are the result of the recent shift in immigration policy by the Trump Administration.  In April the administration released the Buy America Hire American initiative, emphasizing the policy of protecting American goods and workers.  As we predicted, one of the side effects of the initiative was to tighten the wage requirements in the H-1B program. 

Why is USCIS complaining about the "Level I Wage" 

There are several variations of these Level I Wage Requests for Evidence.  But they are based on this basic argument - Level I wage is supposed to be paid to "entry-level" positions that require only a "basic understanding" of the job and limited exercise of judgment. Accordingly, USCIS questions whether the position being petitioned for is complex enough to qualify as an H-1B Specialty Occupation if Level I wage is used.   Conversely, if the employer's position is that the duties of the position are complex, the use of a Level I LCA would not be appropriate.  

How to Respond to a "Level I" Wage RFE

The following are some arguments that the employers can use to respond to these RFEs.  

• The legislative history of the DOL wage level indicates that the current four levels of wages were not designed to determine the nature or complexity of the job duties.

• The assignment of DOL wage level is a mechanical process based on the requirements of education, training, skills, knowledge or experience, etc., for the position. Despite the DOL guidance, the nature and complexities of the job duties are not considered when assignment a wage level.

• The use of the term "basic understanding" of a profession does not imply a lack of complexities. For example, to be able to qualified to work as a medical doctor, basic understanding of medicine means many years of education and residency training. 

• Some professions are inherently complex regardless of wage level. Examples include actuaries, attorneys, surgeons, research scientists, etc.  Nobody can argue that these professions are not complex enough for H-1B purposes regardless of the wage level assigned.

• The four levels of wages assigned by the DOL are used within an organization to reflect the experience, seniority, performance, etc., of an employee in a particular occupation.  Again, complexity is not part of the equation.  A clerical position can have four levels of wages.

• Requiring employers to pay H-1B workers a higher level wage would be unfair to American workers.  For example, an engineer who just graduated from college should be paid an entry level (Level I) wage regardless of whether she is a U.S. citizen or a foreign worker.  

Conclusion

The above are just some basic guidelines for consideration.  When responding to a Level I Wage RFE, it is almost impossible to prepare an effective response without the assistance of a knowledgeable immigration attorney.   Not only does it involve complex legal analysis of the legislative history, and the related statutes and regulations, it also requires a very thoughtful analysis of the facts of each case - the job duties, the organizational structure, hiring history, supervisory chain of command, parallel positions in the industry, etc.  Although questions regarding the wage level have been raised before in isolated H-1B cases, the massive issuance of RFEs on this issue is unprecedented.  Employees and H-1B workers should try their best to prepare a well-reasoned  and well-supported response.