October 11, 2019
H-1B RFEs – Understanding Key Issues
An RFE (Request for Evidence) has long been viewed as an unwelcome, and often times, onerous step as it adds uncertainty to, and prolongs, the visa application process. In the past 2 years, employers have been seeing an increasing number of RFEs issued by the USCIS (United States Citizenship and Immigration Services) in H-1B cases, particularly the H-1B cap cases. Between January 1 and Aug. 31, 2017, the USCIS issued 85,000 RFEs, to H-1B visa petitions – a 45 percent increase over the same period last year. In contrast, total number of H-1B petitions rose by less than 3 percent in the same period.[1]. Many say this trend is largely as a result of Trump’s 2017 Executive Order, ‘Buy American, Hire American’ which directs government agencies to devise policies that focus to“…help ensure that H-1B visas are awarded to the most–skilled or highest-paid petition beneficiaries.”
An RFE can be quite a task, but often times, can be successfully overcome with strong documentation and compelling arguments. This article addresses the common RFE reasons that are being put forth by the USCIS. By preempting these reasons at the get go, employers can potentially avoid uncertainties and delays in the application process.
- Specialty Occupation
The most common RFE issue relates to whether a job qualifies as a ‘specialty occupation,’ particularly with an entry-level wage. The H-1B visa is reserved for foreign workers who render services in a specialty occupation; this is proved by showing: (i) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (ii) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; (iii) the employer normally requires a degree or its equivalent for the position; or (iv) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.
8 CFR 214.2(h)(4)(iii)(A).
Each of the above criteria offer challenges due to their subjective nature in determining what constitutes a specialty occupation. USCIS looks for a strong connection between the degree program and the specific job duties associated with the proffered position. Due to the increasing narrow interpretation of “specialty occupation” by USCIS, H-1B petitions requiring a more general degree are often denied. USCIS may now question an electronic engineering degree for an IT job or an MBA degree could be viewed as too broad for a marketing or sales job position. Some proffered positions are scrutinized more than others as USCIS relies on their premier source of career guidance – the Occupational Outlook Handbook (OOH) (published by the Department of Labor) – to determine which job positions require a bachelor’s degree.
Criteria for certain roles like computer programmers are becoming more stringent; the 2017 USCIS memo clarifies that entry-level computer programmer positions are no longer automatically considered to be an H-1B specialty occupation. USCIS notes that as some computer programmer positions only require an associate’s degree, employers now have to demonstrate that H-1B foreign applicant’s role is sufficiently complex to require a bachelor’s degree.
- Level 1 Wage
Additionally, in determining specialty occupation, USCIS takes a look at the wage level too to see if the job offered truly requires the H-1B worker to have a bachelor’s degree. Specifically, entry-level positions that require a university degree, but no experience are typically classified under level 1 wage. Level 1 (entry) wage is typically assigned to positions that require a basic understanding of the occupation; such an employee performs routine tasks that require limited, if any, exercise of judgement.
The Level 1 Wage RFE calls into question whether the LCA appropriately supports the H-1B petition. These RFEs imply that although the position may be specialized, the Level 1 Wage used to support the LCA was inappropriate, and that the LCA should have been supported by a prevailing wage determination above Level 1.
Employers must show that entry level duties that draw on skills acquired from specialized bachelor’s program would qualify as a ‘specialty occupation.’ An employer may also demonstrate that certain tasks can be complex and specialized even in an entry-level occupation.
- Third – Party Worksite
Third party work, where H-1B employees are posted at third party or end-client locations to work on specific project, as opposed to being employed in-house at the employer’s office, have come under greater scrutiny. In the recent past, USCIS has been asking employers to provide detailed documentation seeking specific itineraries and schedules of workers’ stay in the United States along with the nature of client projects and engagements.
- Employer – Employee Relationship
The employer-employee relationship has become more so important in the H-1B third-party worksite context. In such cases, where the H-1B employee is posted at the end-client site, USCIS requires evidence to show that the foreign worker will be managed and controlled by the H-1B sponsoring employer, and that the third – party client shall have no authority and/or control over the employment terms of such worker (hire, termination, salary, insurance, etc.) Employers must submit agreements or MSAs (with the SOWs, PO, end-client letters, etc.) that expressly mention the petitioning employer’s obligations toward the employee and their right to control the employee.
Zeenat Phophalia, Esq., Senior Attorney
Keywords: H-1B, Scrutiny, USCIS, RFE, Specialty Occupation
[1] https://www.reuters.com/article/us-usa-immigration-employment-insight/trump-administration-red-tape-tangles-up-visas-for-skilled-foreigners-data-shows-idUSKCN1BV0G8
