By Kalpana V. Peddibhotla & Roujin Mozaffarimehr
This year, USCIS has taken the novel and ultra vires stance that H-1B petitions for entry-level positions do not qualify for the classification and are not specialty occupation. This has led to an onslaught of Requests for Evidence (RFEs), even where the classification category would clearly require at least a Bachelor’s Degree. Absurd RFEs have abounded – including employers of doctors, lawyers and other licensed professionals having to provide evidence that such positions can both be entry level and a specialty occupation.
Rather than dwell further on the irrationality of these RFEs, and the potential impact on businesses seeking to attract global talent, MPLG has taken a proactive approach for these RFEs that we would like to share here. At the outset though, we note that many positions should indeed be filed above the entry-level classification and employers should have honest conversations about the roles they choose to pursue for H-1B and not use H-1B employees as a means to save money. Having said that, we would like to share some recent successes we have had in responding to Level 1 H-1B RFEs.
Obtain an Expert Opinion. We typically work with University experts in obtaining their opinion as to whether a specific position for an employer is indeed a specialty occupation. We also request the expert to determine whether that position is properly classified as Level 1.
Provide A Detailed Job Description Which Explains the Entry Level Role. In order to aid the expert, and to better explain the role with our client, we provide a detailed job description including the tools and technologies that the H-1B Beneficiary would be using. We further explain how the tasks are “routine” and require “limited” exercise of judgment, but at the same time we explain why a degree or specific University-level coursework would be required to provide the theoretical framework for performing the tasks. Finally, we explain how the position fits within the employer’s hierarchy and how the task is closely “monitored” and “reviewed” for accuracy. To illustrate how this works in the legal profession – a first year attorney may initially perform routine legal research with limited client interaction. However, to perform that research and analysis, and draft memos, motions, and briefs, a law degree is required. The first-year attorney’s work product would be reviewed before it is submitted in court by a more senior attorney.
Describe the Industry. We also recommend obtaining competitor letters, providing a detailed explanation of the industry in general, and providing a job survey of similar positions. We think it’s critical to provide a broader narrative on the particular industry in order to explain that the H-1B employer is acting within the industry’s norms and standards.
Dispute the Legal Basis for the Level 1 RFE. In addition to the expert opinion, detailed job description, and industry context, we think it is paramount that employers dispute some of the underlying presumptions of the Level 1 RFE:
- Identify how there is nothing in the statute or regulations that suggests that entry-level positions in a specialty occupation change the character of the occupation itself.
- Explain how the wage level system does not determine specialty occupation using the Department of Labor’s Wage Guidance of 2009.
- Refer to USCIS reference manuals to provide examples of specialty occupation categories identified by the Service itself.
- If applicable, explain how the wage level reflects the worker’s stature within the employer’s hierarchy, not whether the position falls within the regulatory definition of specialty occupation.
- Refer to the DOL regulations and USCIS regulations to explain that it is outside the USCIS’s adjudicatory function to make wage determinations.
We think that the sweeping Level 1 RFE attack by USCIS is misguided and undermines the legislative process. It seems that these RFEs are intended to present further hurdles to US employers who hire foreign workers based upon a biased presumption that such workers drive down the wages of U.S. workers. We believe that the greater issue for the USCIS is whether it is properly adjudicating H-1B petitions when it takes an arbitrary approach as opposed to narrowly tailoring its requests and its adjudications to the specific circumstances presented by the US employer.