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USCIS to Continue Challenging H-1B Level 1 Wage Applications

Last year, President Trump signed the “Buy American, Hire American” executive order, which specifically discussed the need to reform the H1B program, and called for the implementation of policies that will cause only the highest-paid and most-skilled foreign workers to be granted H1B status.

Following the order, the United States Citizenship & Immigration Services (USCIS) started issuing requests for evidence (RFEs) on the majority of H1B petitions accompanied by labor condition applications (LCAs) that selected level 1 (entry) wage, the lowest permitted wage level for H-1B filings.

The wage level 1 is generally determined by the education required for the position and the years of experience required to perform the job duties. According to prevailing wage determination and policy guidance (PWD guidance), “Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation”. The wage Level 1 positions are intended for individuals having a basic understanding of the occupation, who work under close supervision, and perform routine tasks that require limited, if any, exercise of judgement.

In many 2017 RFEs, the USCIS argued that the job duties provided in the petition were too complex to be considered entry-level, involved the exercise of judgment, and were not performed under close enough supervision, therefore were not properly classified as wage level 1 positions.

In order to properly prepare for sponsoring employees in the 2018 H-1B season, the petitioning employer must closely review the PWD guidance which explains factors that must be taken into account when choosing the level wage. This includes “specific vocational preparation” (SVP) level, job zone, education and training codes for professional occupations (ETC) code for the standard occupational classification (SOC) code chosen for the position on the LCA.

Contact our attorneys today to get assistance with the proper preparation for the 2018 H-1B cap filing season!


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