Scores of H-1B cap-subject applicants and their employers breathed a collective sigh of relief this spring when USCIS began issuing receipt notices for lottery selected cases. In most years, such selection would mean that an approval was essentially assured. Requests for Evidence (RFEs) were seen only as incidental nuisances. But this is not most years.
A Surge in RFE Issuance
The American Immigration Lawyers Association (AILA) has received hundreds of reports of a specific RFE pattern trending in recent weeks. The requests initially appeared to be a rogue misinterpretation of the law, but that is no longer believed to be the case. Referred to as the “Level 1 Wage Issue RFE”, this problem is national in scope. Hundreds, possibly thousands, of cases have received the same request for evidence. Of the samples collected and reviewed by AILA, 83% appear to impact April’s cap-subject submissions. But the problem is not limited solely to cap-subject cases. There are sporadic reports of the Level 1 Wage RFE being issued in extension of status (renewals) cases; that is, cases where the individual is already on H-1B status. Equally concerning are reports of Notices of Intent to Revoke (NOIR) issued in cases where approvals were already granted.
AILA conducted a teleconference to advise practitioners on developing a unified response to this alarming trend. The teleconference was the largest ever attended; confirming that this issue is viewed as a serious threat to the future of the H-1B program as we know it. Experts link the surge to the March 31st memo directing officers to consider the wage level for the position on the LCA when determining whether the position qualifies as a specialty occupation. The memo and the Buy American and Hire American Executive Order signal the administration's desire to cause a chilling effect across visa programs.
The Nature of the RFE
The request primarily focuses on the wage level used in the underlying certified LCA. A certified LCA must be included with each application at the time of H-1B filing and may not be edited or "swapped out" later.
The RFE raises the claim that (A) a Level 1 (entry level) wage is not appropriate given the complexity of the job duties described, or (B) the position is not a specialty occupation because the Level 1 wage indicates that the position is "entry level". There are also reports of RFEs where a Level 2 wage was used and the USCIS is still claiming that a Level 2 wage indicates that the employee will be performing only moderately complex tasks that require limited judgment. Using wage level assignment as a means to challenge the job's qualifications for H-1B assignment is unprecedented.
Clients offering an entry level wage in any occupation that requires a bachelorette degree were not ill advised to use a Level 1 wage. Rather, USCIS is misapplying the law by conflating entry level skills with occupational titles. For example, a the occupation of "Dentist" requires more than a bachelor's degree to perform. Yet, an entry level Dentist is no less qualified for an H-1B simply because he/she is paid a lower salary given their need for additional supervision/lesser skills. In such cases, the use of a Level 1 wage was completely warranted and legally appropriate.
Off-site, remote, or third-party placement style employment does not appear to be more likely to trigger an RFE. Neither does any particular job code.
The Road Ahead, Ellis Porter Responds
Consistent with the national trend, Ellis Porter has now received the Level 1 Wage RFE in a majority of our cap-subject filings. We have developed a detailed response to each RFE based on the clear language of the statute. We anticipate submitting responses to all requests promptly. Given current processing times, unfortunately, the USCIS review of responses could exceed two months. This will likely push back the anticipated October 1st start date for many applicants.
Premium Processing may also resume on October 3rd. Clients should consider whether an upgrade to Premium is worth the cost, in light of potential denials. For some, the certainty of a case outcome, whether good or bad, as well as business staffing and international travel needs may be paramount. In such cases, we encourage you to discuss the Premium option with us when it resumes.
It is Ellis Porter's strong position, as well as that of most legal experts, that these RFEs are baseless and will not withstand judicial scrutiny. Ellis Porter shares the frustration of our clients. The uncertainty of case outcomes makes personal and business decisions difficult. We will make every effort to support potential litigation both for our individual clients as well as any large-scale lawsuit that is undertaken by the American Immigration Council.