In the last year, USCIS has certainly increased its scrutiny on all cases, especially on H-1B cases.One tact that USICS has taken is to insist that, if an employer has used a Level 1 wage, then, without any further review of the position, USCIS can assume that it is an entry level position and is NOT a specialty occupation. While to most people, this simply makes no sense, USCIS used this rationale (or lack there of) to deny many H-1B applications. Finally, the Administrative Appeals Office, which overseas appeals of all H-1B denials, has ruled on one such case and overturned the denial. The AAO stated;
Before we do so, a few more general observations are in order about the relevance of wage levels in the context o f H-1 B adjudications. A position’s wage level designation certainly is relevant, but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. We assess each case on its merits. There is no inherent inconsistency between an entry-level position and a specialty occupation. For some occupations, the “basic understanding” that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty. Most professionals start their careers in what are deemed entry-level positions. That doesn’t preclude us from identifying a specialty occupation. And likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent. Wage levels are relevant, and we will assess them to ensure the LCA “corresponds with” the H-1B petition. But wage is only one factor and does not by itself define or change the character of the occupation.
We are very hopeful that this means that USCIS will take a more holistic approach and review all relevant documents in all such cases instead of denying a majority of such cases without really reviewing the relevant documentation. Despite the above, it is still very important to include sufficient evidence with the initial application showing the specialty nature of the occupation. Such evidence can include other job postings for similar positions, letters from other employers, CVs of other employees in the same position, etc. Please do note, that each case is different and the type and amount of evidence needed will vary by case. Please call our office with any specific questions.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.
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