In the past few years, the prevalence of RFEs for H1B visas has skyrocketed. This year, the RFE that caught us all off guard was the Level 1 Wages RFE that targets computer programmers.
But whose fault was that RFE? Someone dropped the ball and figuring out who did it is essential to solving the problem.
Sometimes it’s no one’s fault. This year, no one saw the Level 1 Wages RFE coming. The H1B petition could be perfectly filed taking into consideration all of the classic RFE preemptive measures we’ve learned from the past few years and you, or your employee or client could still have run into problems.
Sometimes it’s the fault of CIS. The Level 1 Wages RFE is the fault of CIS. To justify this RFE, CIS cites a passage from the Occupational Outlook Handbook that states entry level computer programmers are sometimes hired with only a US Associates degree. This does not meet H1B specialization requirements. However, this wrongly assumes that jobs set at Level 1 Wages are always entry level positions, which is not the case. It also ignore a passage from the same book in the same section that states that usually employers require entry level computer programmers to have a US Bachelors degree as a minimum requirement. Even though this RFE is the fault of CIS, you still have to answer it.
Sometimes it’s the employer’s fault. If the job can be set at Level 2 Wages, or the job duties can fit a different occupation that doesn’t run the risk of the Level 1 Wages RFE, employers should work with the attorney and credential evaluator to determine what occupation and wage level to indicate on the LCA. Keep in mind that the occupation must be consistent across all documents involved in the overall H1B petition. Having a different occupation indicated on the LCA than on the petition itself is a huge RFE magnet.
Sometimes it’s the evaluator’s fault, sometimes it’s the fault of the candidate. In the case of the Level 1 Wages RFE, it’s come down to the question of specialization of the job itself. To answer this RFE, you, or your employee or client will need an expert opinion letter addressing the misconceptions about wage levels and the job’s degree of specialization. Including a detailed credential evaluation in the response to preempt any resulting questions about whether or not your employee or client has the specialized education to perform the duties of the job in question.
To have us review your case, or your client or employee’s case at no charge and no obligation, please send the following documents to firstname.lastname@example.org:
• Beneficiary resume and educational documents
• Employer support letter
• Detailed job description
We will get back to you in 48 hours or less with a full analysis of your case, or your client or employee’s case and our suggestions of how to move forward in your response.
This article was written by Rebecca Little