Specialty occupation and wage level issues have become a scourge for H-1B applicants.  Over the past few years, USCIS has changed the way it adjudicates the specialty occupation requirement.  This year the wage level component has become a heated legal issue with the AILA representing five tech and medical nonprofits suing the Biden Administration to block H-1B approval based on the highest wages.

We expect these hot button issues to impact H-1B petition adjudication this summer with the Double RFE, which takes issue with wage level and specialty occupation.

Here’s how it works:

USCIS has been adjudicating the specialty occupation requirement differently.  Instead of defining a specialty occupation as a job that normally requires a minimum of an advanced degree, it adjudicates the term as ALWAYS requiring an advanced degree making the exception the norm.  USCIS has also been making the assumption that wage level one implies a job is entry level.  Since entry level jobs are more likely than other industry jobs to normally but NOT ALWAYS require an advanced degree, this becomes both a wage level issue and a specialty occupation issue: either the H-1B employee is not making the prevailing wage, or the job is not a specialty occupation.

Of course, this is flawed logic, but it is flawed logic that H-1B applicants are left to deal with.  At CCI TheDegreePeople.com we help our clients answer this RFE every year.  This is what we do:

We work with experts in every H-1B field that can write expert opinion letters to validate that our clients’ cases meet H-1B wage level and specialty occupation requirements.  These experts have at least a decade of experience working directly in the field of the H-1B job, are in excellent standing within the industry, and have made hiring decisions regarding the position in question and supporting positions.  Our clients provide the expert with as much evidence and documentation as possible regarding the position and the employer, including a detailed breakdown of the duties and responsibilities of the job, past hiring practices, the ad for the job, and ads for the same position in parallel companies within the industry. 

Also include the factors that went into setting the wage level.  The purpose is to show that the educational requirement is an industry standard for this position and that the wage level is set appropriately in regards to the beneficiary’s education and work experience.  In many cases, the wage level is set low because a beneficiary may have the required degree but little to no actual field experience and would therefore require a high level of training and supervision to start justifying the low wage level.  There are many factors that go into determining the wage level for any given job including what parallel companies within the industry in the employer’s geographical location are paying and employee experience.

From all of this documentation and evidence, the expert can write the expert opinion letter your case needs to overturn the RFE and get that visa approved.

Before you file a completed H-1B petition or answer a Double RFE, let us review your case for free and provide a free consultation.  Visit www.ccifree.com and 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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