Immigration Fact and Fiction for the U.S. Employer: H-1B Entry Level (Level I) Wage Blues – Revisited: Why Can’t a H-1B Professional be Entry Level?

by Proskauer - Law and the Workplace
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My learned colleague, Cyrus Mehta, in his Blog “H-1B Entry Level Wage Blues”[1] posted on July 31, 2017 eloquently deconstructs the arguments made by USCIS when that agency challenges whether individuals can be qualified as participating in a “specialty occupation” or “profession” if they are classified for wage purposes as being at Level I.

Cyrus correctly points out that it is the nature of the job that determines whether it is “professional” or not, and not what level of experience you have in performing the duties. The levels only go to where you are in your career; from beginner to highly experienced, and of course, if you are an inexperienced doctor, you will be at Level I, but you will still be a professional, paid less of a salary than an experienced doctor at Level IV.

The Department of Labor’s prevailing wage policy guidance[2] describes Level I (entry) wage as “assigned to positions that require a basic understanding of the occupation, and such an employee performs routine tasks that require limited, if any exercise of judgment.  Such an employee also works under close supervision and receives specific instructions on required tasks and results expected.”

All of this goes to the level of confidence an employer may have in an employee when she first starts out, but does not in any way address the question of whether the position itself is professional.

The challenge by USCIS reflects a fundamental flaw in reasoning, which is even more dramatically illustrated in how USCIS addresses this issue in the policy memorandum it published on March 31st[3].

The memorandum observed that “computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. The memo makes reference to the Department of Labor’s Occupational Outlook Handbook which states “most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.” I can in theory accept that reasoning, although it flies in the face of reality, as I would point out that the percentage of employers that accept anyone with less than a four-year bachelor’s degree must be miniscule in this day and age.

It is an irony that the 2000 Nebraska Service Center Memorandum that was rescinded observed that in the year 2000 more than 60% of computer programmers hired had a four-year degree. It would be interesting to research what the number must be today, 98% percent?

However, the memorandum goes on to connect this observation to the idea that if an employee is offered an entry-level wage [Level – I], this might imply that the individual is not professional, because there are some employers out there in the world who hire individuals at an entry level who only have a two-year associate degree. Quite a logical leap!

It might very well be the case that if an employer regularly hires computer programmers who only have an associate degree [if there still are any out there anymore], that the particular position offered is not professional, but that has absolutely nothing to do with whether the individual is being hired at Level I or Level II, or higher.  In fact, it could be the case that if an employer has as its minimum requirements an associate degree and hires an individual with ten years’ experience plus an associate’s degree, that this Level IV employee would not be a professional.  On the other hand, if a four-year degree is the requirement, then an entry level individual in Level 1 is clearly a professional.

Cyrus goes on to observe that one must look to the statute and regulations to assess if any particular job is a “specialty occupation”, and the regulations provide four alternative criteria at 8 CFR § 214.2(h((4)(ii).

He observes that there may be some concern with using the fourth prong which is:

  1. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. …

He observes that there is language in an AAO unpublished decision “that this would create an issue of credibility if the LCA only identifies a Level I wage”.

However, that notion is misdirected. Highly complex positions have an entry level too.

If anything, the USCIS “credibility” analysis is misdirected. It is not the specialty of the position which is not credible but perhaps the wage level.

We are starting to see “requests for evidence (RFE’s)” challenging whether the assessment that the position is Level I is correct. This might more accurately be the challenge to an H-1 petition which outlines complex duties, particularly in a situation where the individual has a significant amount of training and experience which seems to put her beyond entry level.  That, however, is an altogether different issue and concern.

[1] http://blog.cyrusmehta.com/2017/07/h-1b-entry-level-wage-blues.html

[2] Employment and Training Administration – Prevailing Wage Determination Policy Guidance, Revised November 2009, at Page 7.  http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf

[3] Rescission of the December 22, 2000 Guidance memo on H1B computer related positions https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

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