The fight against the proposed final rule that would give preference to H-1B applicants with the highest wages is heating up.  The American Immigration Lawyer’s Association is representing five nonprofits from tech and medical industries to sue the Biden Administration to block this rule from being finalized. 

What does that mean for those filing H-1B cap-subject petitions this summer?  We anticipate seeing an onslaught of Double RFEs.  These RFEs raise specialty occupation and wage level requirement issues.  H-1B beneficiaries making level one wages are particularly vulnerable to this RFE.

Here is how it works:

First, USCIS assumes that because the H-1B employee’s pay is set at level one wages the position is entry level.  Since many entry-level positions H-1B employees are hired for normally – but not ALWAYS – have a minimum bachelor’s degree educational requirement, USCIS will take issue with the job meeting specialty occupation eligibility requirements.  If the position is not entry level, USCIS will circle back around to wage level issues in that the H-1B requirement that the employee be paid the prevailing wage for the job may not be met.  This is the logic loop that causes the Double RFE.

There are two main problems with USCIS’ reasoning for this RFE: 1) Level one wages does not necessarily mean the job is entry level.  Many factors go into setting an employee’s starting wage.  2) H-1B eligibility requirements state that a job is a specialty occupation if it normally requires a bachelor’s degree minimum to perform.  In recent years, USCIS has been adjudicating normally as always, effectively making the exception the norm when applied to visa approval.

The best way to prevent or answer a Double RFE is with an expert opinion letter that addresses both issues.  The expert must have at least a decade of experience working directly in the field of the H-1B job and have a leadership role within the field.  Ideally, this expert has made hiring decisions regarding the H-1B position in question along with supporting roles to have a clear understanding of the credentials and experience an employee must have to perform the job.  The more information you can provide the expert about the employer, past hiring practices, parallel positions at similar companies within the industry, and the job itself the more compelling the letter will be for USCIS to approve the visa.

At CCI TheDegreePeople.com we work with experts in all H-1B fields.  They have experience writing letters to address Double RFE issues as we always keep an eye on USCIS approval trends.

For a free review of your case visit www.ccifree.com.  We will respond in 4 hours or less.

Sheila Danzig

Sheila Danzig is the director of CCI TheDegreePeople.com.  Sheila specializes in overturning RFEs and Denials for work visas.

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