A recent trend has been noted with recent H-1B filings, and in particular, H-1B cases that are filed with a Level one (out of four) wage. Though there has been no change in the law from Congress regarding H-1B’s, USCIS seems to have taken a more strict view towards H-1B applications.
In the latest trend they have begun to question H-1B Cases that have been filed with a level one wage, and if being level one wage, qualifies for them for having a specialty occupation visa like the H-1B. Or how can they have a specialty occupation and be paid only at level one wage. If Level one wage is accurate than does the position require at least a Bachelor’s Degree?
Another example is in a recent RFE, USCIS quotes the “Prevailing Wage Determination Policy Guidance” issued by the Department of Labor that describes that different wage levels. Level One’s description was provided in the RFE and noted as “Level 1 (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation.” This RFE went on to state that this petition, because of the high level job duties listed by the client did not support the LCA, which had a level one wage. Questions currently populating the RFE state:
By designating the proffered position at a Level 1 wage, you indicate that the proffered position is an entry- level of a comparatively low level relative to other positions within the occupation.
These duties do not correspond to the Level 1 wage description as they do not appear to encompass “only a basic understanding of the occupation.” The duties described appear to contain more than “routine tasks that require limited, if any, exercise of judgement.”
Therefore, the position, as described in your petition, does not appear to be an entry-level position despite the wage classification you have selected on the LCA. As such, you have not sufficiently established that the petition is supported by a certified LCA that corresponds to the petition.
Our office suggests to refrain from filing Level 1 wage based H-1Bs at this point.
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