L-1 Wages RFE for H-1 B
- September 9, 2017
- Posted by: ProfessionalGuru
- Category: Uncategorized
L-1 Wages RFE for H-1 B The RFE attempts to trap the employer. It challenges whether the Labor Condition Application, if it indicates a Level 1 wage, appropriately supports the H-1B petition.
According to the DOL’s prevailing wage policy guidance,
a Level 1 (entry) wage is assigned to positions that require a basic understanding of
the occupation, and such an employee performs routine tasks that require limited, if
any, exercise of judgment. Such an employee also works under close supervision and
receive specific instructions on required tasks and results expected.
The RFE – which meticulously parrots the Level 1 duties from the DOL’s wage guidance
– then asserts that the position described in the H-1B petition appears to be more
complex than a position that is assigned a Level 1 wage. Therefore, the RFE asserts
that the employer has not sufficiently established that the H-1B is supported by a
certified LCA that corresponds to the petition.
Employers who receive such an RFE should not panic. Just because the position is
assigned an entry level wage does not necessarily mean that the position cannot
qualify as an H-1B specialty occupation. Moreover, even an occupation assigned with
an entry level wage can be complex and thus require a bachelor’s degree in a
specialized field. The DOL’s worksheet within its wage guidance indicates that
if the occupation requires a bachelor’s degree and up to two years of experience,
it will be assigned a Level 1 wage to a corresponding Job Zone 4 occupation.
In the event that the job requires skills, would that bump up the wage to Level 2?
Unless the job requires skills that are not encompassed in the O*NET tasks, work
activities, knowledge, and Job Zone examples for the selected occupation,
the position can still remain in Level 1, according to the DOL’s wage guidance.
Hence, the corresponding tasks of an occupation requiring a bachelor’s degree and up to
two years of experience can still be complex, even if the wage remains at Level 1
and the position requires supervision. For example, it would be difficult for the
USCIS to argue that an entry level doctor, lawyer or architect cannot qualify for
H-1B visa classification. These occupations need underlying degrees in the specialty
as a minimum for entry into the profession. Even if the lawyer is closely supervised,
he or she still needs to perform complex tasks relating to the underlying Juris Doctor
degree. The same logic ought to apply to other occupations that are readily classifiable
under the H-1B visa such as engineers or computer systems analysts. The job duties at
any wage level correspond to the knowledge that is acquired through a specialized
degree such as a degree in engineering or computer science.
Grassley’s bill also would provide the US Department of Labour (DOL) enhanced authority
to review, investigate and audit employer compliance with programme requirements,
as well as to penalise fraudulent or abusive conduct. It requires the production of
extensive statistical data about the H-1B and L-1 programmes, including wage data,
worker education levels, place of employment and gender.
In June 2017 Grassley requested additional information from DOL regarding the extent
to which US companies employ H-1B workers through contracting companies and the impact
that this may have on wages and US workers.(5) Grassley has praised actions taken by
President Trump, Labour Secretary Acosta and the Department of Homeland Security (DHS)
in combating visa fraud and protecting US workers. One such recent activity includes
a memo issued by USCIS discussing lower-level occupations and positions.