H-1B RFE Trend: Wage Levels in the Labor Condition Application

USCIS is scrutinizing wage levels of ­H-1B specialized worker visa petitions, issuing numerous Requests for Evidence (“RFEs”) for jobs offering entry-level (Level 1) wages. The Level 1 wage represents an entry level work position.

The Department of Labor’s guidance provides that such entry-level jobs involve “routine tasks” performed “under close supervision and receiv[ing] specific instructions”. Because the wage levels must first be approved by the Department of Labor in the Labor Condition Application before the petition is filed with the USCIS, it cannot be changed when responding to the RFE. Employers faced with such RFEs are required to demonstrate that the job duties of the position are entry-level and thus satisfy the Level 1 wage approved by the Department of Labor. Employers should at the same time keep in mind that, to qualify as a specialty occupation under the H-1B visa program, such entry-level positions must principally require the theoretical and practical application of a specialized body of knowledge.

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