Tag Archive for: DOL Prevailing Wage Guidance

Cyrus Mehta

The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification

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By Cyrus D. Mehta and Sophia Genovese

As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

In Matter of B-C-, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3. According to the DOL’s Prevailing Wage Policy Guidance, referenced in the Matter of B-C- decision, Level I (entry) wage rates

…are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009).

The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition. The Director, instead, should have compared the proffered job duties to those associated with the appropriate Occupational Information Network (O*NET) occupation.  On appeal, Petitioner asserted that an EIT is entry level by its very definition. The AAO acknowledged that by its plain terms, an EIT appeared to be entry-level, but a hasty review would be insufficient. In order to determine whether Petitioner properly selected a Level I wage, the AAO analyzed whether Petitioner selected the most relevant standard occupational classification (SOC) code, and then compared the experience, education, special skills required, and any other requirements provided in the petition and O*Net classification. Here, the description and tasks in O*NET for civil engineer generally coincided with the proffered job duties, concluding that the Petitioner selected the appropriate SOC code.  Next, the AAO analyzed whether the proffered position required experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation. Here, the AAO found that the proffered position did not require more education, experience, special skills or supervisory duties beyond what was listed on O*Net, and, thus, was properly classified as a Level I wage.  The appeal was sustained.

In Matter of G-J-S-USA, Inc., the Petitioner sought to temporarily employ the Beneficiary as an investment banking analyst under the H-1B classification. Matter of G-J-S-USA, Inc.  The Director denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition where (s)he believed that the designated Level I wage was incorrect.  On appeal, the Petitioner asserted that an incorrect methodology was used. Id. Although the AAO found that USCIS erred in its methodology by comparing the job duties of the proffered position to the definition of a Level I wage given in the DOL’s guidance, the AAO ultimately held that the Level I wage assignment was indeed improper.

The AAO explained that the Director should have applied the five-step process outlined in the DOL’s prevailing wage guidance which required comparing the experience, education, special skills, and supervisory duties described in the O*NET description to those required by the employer for the proffered position. After employing the proper analysis, the AAO found that the assignment of a Level I wage was improper, and that the petition was thus not approvable. The Petitioner had specifically failed on step three, which involved a comparison of the education requirements. The Petitioner’s stated minimum education requirement was a master’s degree in finance or a related field. Appendix D of the DOL guidance, however, indicates that the usual education level for a financial analyst was a bachelor’s degree. According to the AAO, the master’s degree requirement warranted a one level increase in the wage and the appeal was dismissed. Id.

Critically, the AAO highlighted in both cases that there is no inherent inconsistency between an entry-level position and a specialty occupation. Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. On the other hand, according to the AAO, the key issue is whether the LCA corresponds to the H-1B petition. If the wage on the LCA does not correspond to duties and requirements described in the H-1B petition, then the H-1B petition can be denied.

It is indeed salutary that the AAO confirms that H-1B eligibility cannot be denied solely on the ground that a proffered position is classified as a Level I wage. There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. Still, the AAO substituting its purported expertise for the DOL’s expertise in determining wage levels on the LCA is of great concern. The AAO stated, “When assessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL’s responsibility with respect to wage determinations.” But the AAO did precisely just that in Matter of G-S-J-USA, Inc. by usurping what DOL knows how to do best, which is making a wage determination.

The AAO relied on Appendix D in the prevailing wage guidance that provides a list of professional occupations with their corresponding usual education. If an occupation requires only a bachelor’s degree in Appendix D, and the employer requires a Master’s degree, which was the case in Matter of G-S-J-USA, Inc., then according to the DOL guidance, the employer is required to increase the wage level by one notch even if there is no experience requirement. It is not clear from the AAO decision whether it selected the appropriate occupation under Appendix D, which again is in the realm of DOL’s expertise. Even assuming the AAO arrived at the correct comparable occupation under Appendix D and the employer did not bump up the wage level, this ought to be considered as an LCA violation, which the DOL to deal with in the event of an LCA audit, and should not undermine the employer’s ability to employer the worker in a specialty occupation, resulting in USCIS outright denying the H-1B petition.

The two new AAO decisions teach that it may be a best practice for an employer to request and obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center prior to filing an LCA. As a practical matter, though, obtaining such a prevailing wage determination can take several weeks, and employers must timely file H-1B petitions within the first five business days of April each year to be considered under the H-1B lottery, or in the case of an extension, before the current H-1B status expires, or before the H-1B worker wishes to port to a new employer. In the event the employer disagrees with the NPWC determination, an appeal to the Board of Alien Labor Certification can take several months.  It is thus important to check Appendix D before the employer decides to require a Master’s degree and still pay a Level 1 wage.  On occasion, a position may require, at a minimum, an advanced degree. For example, a law degree is required for minimum entry into legal profession. However, an employer seeking to employ a new graduate would still be allowed to pay an entry level wage to the prospective employee under the DOL guidance. For lawyers, the DOL acknowledges that prospective employees need a professional degree prior to entering the profession, and thus a Level I wage is appropriate for an entry-level attorney position. Similarly, Market Research Analysts, Economists, and Urban Planners, among others, typically require a Master’s degree, for entry into the field. Attention should also be paid to other factors that may cause a bump up in the wage level, such as special skills or language requirements that may not be consistent with the skills listed in O*Net for a specific occupation. Thus, if the employer requires a foreign language skill, it may or may not need to bump up the wage level depending on whether a foreign language is inherently required for the job but which does not increase the complexity or seniority of the position. All this further confirms the point we make that assessing whether there is an excessive educational requirement or a skill lies within DOL’s rather than USCIS’s expertise.

Still, until the AAO changes its position, employers must carefully review the DOL Wage Guidance and Appendix D when assigning a wage on the LCA in the brave new world of H-1B adjudications in order to stave off a needless denial!

(The authors acknowledge the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

H-1B Entry Level Wage Blues

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Those who filed under the FY 2018 H-1B visa lottery and were selected must have been pleased. As premium processing was eliminated, the approvals have just started coming in this summer. Cases that are not readily approved receive Requests for Evidence (RFE). Many of the RFEs object to the H-1B worker being paid an entry level wage.

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.

Indeed, the wage level assigned to the occupation ought not determine whether it is eligible for H-1B visa classification or not. If the position does not require a minimum of a bachelor’s degree for entry into the occupation, such as a plumber or welder, then even a Level 4 wage assignment would not be able to salvage this occupation for purposes of H-1B classification.

In  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questioned whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.  While this policy memorandum only applied to entry level computer programmers, practitioners are now seeing that any occupation that is assigned a Level 1 wage, even if it is not related to computer programmer, gets an RFE. It may be worth noting that even an entry level computer occupation should be eligible for H-1B classification if it can be demonstrated that the skills necessary to perform the duties require the minimum of a bachelor’s degree.

President Trump’s Executive Order on Buy American Hire American may also be responsible for this trend, which provides in relevant part:

In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries

Even if the administration has not been able to promulgate new regulations to achieve its stated goals under the executive order, these RFEs are indirectly implementing President Trump’s “Buy American Hire American” policy by thwarting H-1B petitions filed for entry level positions. While H-1B petitions with Level 1 wages have run into trouble prior to the Trump administration, RFEs are now being issued more frequently whenever a Level 1 wage has been noticed. Immigration attorneys must fight back on behalf of their clients. Otherwise, the government could potentially exclude entry-level professionals from using the H-1B visa, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. Paying such an entry wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision. Another argument that can be made is that if an employer is forced to pay a legitimate entry level worker on an H-1B visa at a wage level higher than the entry level wage, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer is forced to pay a higher wage to an H-1B worker at the entry level, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is as a result of reading out H-1B visas from the INA for entry level workers in acknowledged professions, it could also have the effect of artificially distorting wages that could ultimately hurt competitiveness. If the wage paid is well above the minimum wage  in Level 1, but slightly under Level 2, and at times there is at least a $20,000 or $30,000 difference between Level 1 and Level 2, then that too can be used to argue that the higher wage being paid is commensurate to the more complex duties in the H-1B petition, despite the RFE asserting that the duties are basic, even if this higher wage is still within Level 1.

There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. All that is required is for the petitioning employer to demonstrate that the proffered position requires the “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”  INA §214(i)(l).  The regulations further define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  See 8 CFR §214.2(h)(4)(iii)(A).

All of the criteria in 8 CFR §214.2(h)(4)(iii)(A) suggest that the bachelor’s degree is the minimum requirement for entry into the occupation or for purposes of performing the duties of the position. However, if one is relying on prong 4 to establish H-1B eligibility because it is unusually complex or specialized, the AAO in an unpublished decision has noted that this would create an issue of credibility if the LCA only identifies a Level 1 wage. Therefore, practitioners should be prepared to either assert that the duties can be specialized and complex even if a Level 1 wage is being paid, or alternatively, argue under prongs 1, the first part of prong 2 or prong 3. In a different decision, the AAO recognized that a Level 1 wage in certain occupations, such as doctors or lawyers, would not preclude a finding that they qualified as specialty occupations. Of course, if the position required more than 2 years of experience, then it will be harder for the employer to argue, if not impossible, that an entry level wage was justified. On the other hand, if the beneficiary was demonstrating possession of a degree through work experience, it should be carefully explained that this experience is not part of the job requirement, but is being used by the beneficiary to obtain the equivalent of a specialized degree through training or work experience.

Lawyers must use every argument in their legal arsenal to overcome RFEs intending to deny H-1B petitions that contain a Level 1 wage, and if there is a denial, to seek either administrative or judicial review. The law did not intend to impose a Catch-22 on employers who legitimately hire H-1B workers for entry level positions. If the employer argues that the duties are routine and comport to the Level 1 wage definition then the USCIS will play “gotcha” by asserting that the occupation does not qualify for H-1B classification. If, on the other hand, the employer argues that the duties are complex and specialized, then the USCIS will likely continue to delight in playing “gotcha” by asserting that the LCA does not correspond to the H-1B petition. There is a way to avoid this trap.  An employer can demonstrate that routine entry level duties that still need to rely on skills acquired from a specialized bachelor’s degree program would qualify the occupation for H-1B classification. Alternatively, an employer may also be able to demonstrate that certain duties can be complex and specialized in occupations even at an entry level.  The employer must choose the best argument based on the specific occupation being challenged and facts of the case.

There was a time when obtaining an H-1B visa was considered routine and easy. Not so any longer.