To H or not to H? That is the Question

Practice Areas

By: Kirti Kalra

Last summer most H-1B petitions were bombarded with the so-called “Leveling Requests for Evidence (RFEs).”  This practice was aligned with the Department of Homeland Security’s (DHS) regulatory agenda, released in December 2017, which contained many changes that may significantly affect employers, specifically those who hire H-1B, F-1 and H-4 visa holders. The rule proposes to revise the definition of a “specialty occupation” as well as the definition of employment and employer-employee relationships.  Many of the RFEs issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The Administrative Appeals Office (AAO) recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with generic definition of a Level I wage provided by Department of Labor (DOL). The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition.

Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation.

Given the current state of affairs, one can expect inconstancy in the manner in which USCIS evaluates H-1Bs.  If there is no clear understanding of what is acceptable and what is not, the results are likely to vary significantly.  Despite the AAO overturning some of these denials in favor of the employer and beneficiary, the USCIS review of H-1B petitions may be unpredictable and inconsistent until more conclusive guidance is provided to the adjudicating officers.  In the meantime, it would be prudent to focus on the most important and higher up positions for the upcoming CAP season, and file H-1Bs for those individuals who are at the later stages in their careers—vying for even the more difficult positions to fill with U.S. workers.

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