Last year, we saw an unprecedented expansion in RFEs for Specialty Occupation, hitting H1B candidates in computer programmer positions at level 1 wages the hardest. This year, we expect these RFEs to continue to be even tougher and more widespread.
That means, if you, or your client or employee has a “borderline” job – meaning these jobs don’t necessarily require a US bachelor’s degree or its equivalent according to the US Department of Labor’s Occupational Outlook Handbook (OOH) – or if your job, or your employee or client’s job can be misconstrued as a borderline job, you will need to go a step farther to prove that the job is specialized to meet H1B requirements. You also need to be extra careful to keep answers and information on all documents involved in the petition process consistent.
Here are some problems you may run into this H1B season when it comes to occupational specialization:
1. Job description in the LCA doesn’t exactly match the job description on the H1B petition.
This is very common, as most actual job descriptions are not a 100% match for the description of the occupation in the OOH. However, employers must choose a job on the LCA that is outlined in the OOH, and if there are any inconsistencies, CIS can use that for grounds to issue an RFE.
2. Job title in the LCA doesn’t match the job title on the H1B petition.
Last year, we saw an unprecedented number of RFEs with regards to Level 1 Wages for the job of computer programmer. CIS used a passage in the OOH that states employers sometimes hire entry level computer programmers with only a US Associates degree, which doesn’t meet the H1B educational requirement of a US Bachelors degree or higher. To avoid this RFE, employers may be tempted to select a different job title that doesn’t tend to attract so many RFEs in the LCA. If you decide to do this, make sure the job title on the LCA matches the job title on the H1B petition and is a good match for the job description.
3. The wage level stated in the OOH does not match the wages the H1B worker makes.
H1B workers must be paid the prevailing wage for similar jobs in that industry for companies of that size in that geographic region. If the wages you or your employee or client is making doesn’t match those indicated in the OOH, you need to explain why this is the case in the petition to avoid an RFE.
Last year, a big misunderstanding of how wage levels work caused computer programmers making level 1 wages to deal with a slew of difficult RFEs. CIS assumed that just because a job is set at level 1 wages means it’s an entry level position. There are many reasons an employee may start at level 1 wages, even if the job is not entry level. For example, recent college graduates entering the workforce with Bachelors degrees but little to no work experience need a high level of guidance, training, and supervision. Company resources are allocated to these needs as the employee starts, justifying the low starting wage. This needs to be explained in an expert opinion letter, along with a detailed job description and employer support letter.
If you or your client or employee has a borderline occupation or works as a computer programmer, visit us at ccifree.com/ or simply reply to this email for a no cost and no obligation full review of your case, or your client or employee’s case. At TheDegreePeople.com, we work with RFEs every year. We know what triggers them, and we know how to answer them, and most importantly, we know how to prevent them. We will review the entire case, and get back to you within 48 hours with a full analysis, pre-evaluation, and our recommendations moving forward.
This article was written by Rebecca Little