New Year’s Resolution: Overcoming H-1B RFEs in 2018

by Miles & Stockbridge P.C.

As mentioned in our last blog post, H-1B petitions filed during 2017 were subjected to a dramatic and unprecedented increase in scrutiny by the U.S. Citizenship and Immigration Service (“USCIS”). As a result, thousands of H-1B petitions that previously would have been routinely approved were subjected to sometimes lengthy and nearly always burdensome USCIS Requests for Evidence (commonly called “RFEs”). Issues raised by the USCIS in these RFEs have included:

  • Is the position a specialty occupation, meaning one that requires a degree in a specific field of study?
  • Can entry-level positions be specialty occupations?
  • Does the position “correspond” to the wage level designated by the employer on the Labor Condition Application (“LCA”)?
  • Does the employer have sufficient work for the H-1B worker?
  • Does the H-1B worker qualify for the position?

Why is this happening?  

This change is not a result of any new law or regulation; issues like these were the subject of H-1B RFEs on an occasional basis in the past. However, under the new Administration, the existing law is being interpreted differently than ever before.  

H-1B Approval Strategies

As we plan for the filing of H-1B petitions in 2018 and beyond, we are looking at various strategies that may minimize the likelihood of receiving an RFE and increase the likelihood of obtaining approval of an H-1B petition. One of the frequently appearing themes in the RFEs received this year is the question of whether the wage level designated in the employer’s LCA “properly corresponds” with the offered position described in the H-1B petition. This issue is being raised primarily in petitions where the employer designated the offered position in its LCA as being an entry-level position. The “properly corresponds” language appears to be drawn from the DOL’s regulations at 20 CFR Section 655.705(b), which state in relevant part:

For H-1B visas, the following agencies are involved: DHS accepts the employer's petition (DHS Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation or whether the individual is a fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1B visa classification.

In response to RFEs raising this issue, we have taken the position that the question of whether the LCA “corresponds” to the petition is limited by USCIS regulations, guidance memos, and legal opinions to whether the employer has designated the proper “occupational specialty” in the LCA. We have also argued that nothing in the DOL regulations or elsewhere vests in the USCIS the authority to review the appropriateness of the employer’s prevailing wage level designation. Concurrently, we have also presented facts establishing that the offered position is indeed entry-level and warrants the designation of an entry-level wage. Even though we have successfully overcome RFEs of this type, we do not know for sure which argument prevailed.   

Other approaches that we are considering include:

Requesting a formal prevailing wage determination from the DOL. We believe that the USCIS would accept such a determination as conclusive evidence that the position and the wage level correspond to each other, thereby foreclosing RFEs on the issue of wage level designation. In the past, we have not normally requested a formal prevailing wage determination for an H-1B petition, as it can take 90-120 days to receive such a determination. In addition, if the employer requests a formal wage determination but then decides not to use it, the employer could be faced with questions as to why it was not used in the event of a DOL audit.

Relying on a private wage survey. While there is no guarantee the USCIS would accept such a survey in a future case, the focus of this year’s RFEs has definitely been on cases where the employer relied on the publicly available DOL wage data. One of the benefits of a private survey that meets DOL requirements (as compared to a formal wage determination from the DOL) is that a private survey can usually be obtained within a week or two.  

Steering away from Level I. Another option may be to continue to use the publicly available DOL wage data but utilize Level II or higher wage figures in appropriate cases. This approach is likely to have the effect of requiring employers to increase the offered wage in some cases.  

As we continue to learn what works (and what doesn’t) in this new immigration environment, we will be revising and refining our strategies to optimize the chances for the best possible outcomes. We are optimistic that continued strategic thinking will help minimize the likelihood of receiving RFEs and put our clients in the best posture to respond when they arrive.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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