A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, February 16, 2018

H-1B Level 1 Wage Approval and Denial

Since late last summer, many H-1B applicants received formal Requests for Evidence (RFEs) from the USCIS regarding the issue of wage level in the H-1B petition and and related Labor Condition Application (LCA).  These RFEs typically question whether the position qualifies as an H-1B specialty occupation if level 1 wage is offered to the employee.  Employers and attorneys have responded to these RFEs using various arguments with explanation.  Our office also responded to quite a few of these RFEs and, thankfully, all decisions have been favorable. 

As the new H-1B cap filing deadline of April 1st approaches, it is unclear what the current position of USCIS is regarding wage level.  Two recent decisions by the AAO (Administrative Appeals Office) may shed some light on this important issue, although they are non-binding decisions. Both decisions were issued on January 25, 2018: one was approved while the other one was denied.  The first case, Matter of G-J-S-USA, Inc., was filed for the position of an investment banking analyst while the second case, Matter of B-C, Inc., was filed for the position of a nontechnical engineer-in-training.  The language and analysis in both decisions are almost identical. The following are the key takeaways of these two cases. 

First, AAO clarifies the relationship between the Labor Condition Application (LCA) and the H-1B petition.  The LCA is certified by the DOL while the H-1B petition is adjudicated by USCIS under the DHS.  In the LCA, there is a wage requirement, and the purposes of the wage requirement is to protect U.S. workers' wages and to protect H-1B workers from wage abuses.  According to the regulation, "DHS determines whether the petition is supported by an LCA which corresponds with the petition,...."  AAO notes that "When accessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL's responsibility with respect to wage determinations."  AAO confirms that it is the DOL that is charged with the responsibility of wage determination but not USCIS, which is an important observation.

Second, AAO confirms that there is no "inherent inconsistency" between the wage level of a position and its nature as a specialty occupation.  This is a very important observation.  It precludes any conclusion that just because level 1 wage is offered in a position, it is not a specialty occupation.  Wage is a factor to consider but not a defining factor.

Third, in determining whether level 1 wage is appropriately assigned, one should compare the requirements and attributes of a particular position with those associated with the corresponding  occupation in the Occupational Information Network (O*NET).  O*NET is a massive database of information primarily maintained by the DOL regarding various occupations in the United States. 

Fourth, the comparison mentioned above comprises of five steps. (1) Identify the O*NET occupation that best matches the sponsored position in terms of educational and other requirements; (2) Compare the educational requirements of the H-1B position and the O*NET occupation; (3) Compare the experience requirements of the H-1B position and the O*NET occupation; (4) Determine if there any special skills or additional requirements of the H-1B position; and (5) Determine if there are any supervisory requirements for the position.

By applying the above five steps, AAO determined that level 1 wage is not appropriate in the investment banking analyst case as the position requires a master's degree in finance or a related field, which is above the normal requirement of a bachelor's degree.  

These AAO decisions are definitely helpful to employers who plan to submit H-1B petitions.  However, the role of DHS and USCIS in wage determination will still need to be clarified.  AAO appears to suggest that in order to determine whether the DOL-certified LCA "corresponds with" the H-1B petition, USCIS needs to review the wage level of the position offered.  Whether this nexus is sufficient and appropriate remains to be determined. 

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