Emerging Trends: USCIS Challenging Level 1 Wages and Computer Programmer Occupational Classification for H-1B Petitions
Over the past several months, some trends have developed which pose challenges for employers taking part in the H-1B program: 1. the United States Citizenship and Immigration Service (USCIS) is issuing Requests for Evidence (RFEs) for H-1B petitions that challenge the H-1B position’s level 1 prevailing wage classification, the lowest permitted wage level for H-1B filings; and 2. USCIS is denying H-1B petitions for computer programmer-related assignments.
As background, H-1B petitions are reserved for highly-skilled foreign workers in specialty occupations that require at least a Bachelor’s degree (or its equivalent) in a specific field. For a position to qualify as an H-1B specialty occupation, the position must meet one of the following criteria:
The minimum entry requirement for the position must be a bachelor’s degree or higher, or its equivalent;
The degree requirement for the position is common to the industry or the position is so complex or unique that it can only be performed by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attaining a bachelor’s or higher degree.
To file an H-1B petition with USCIS, an employer must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) that contains the H-1B job title, wage level, and location. The wage level, which is split into four levels, is selected based on the job’s required education level and work experience. Level 1—typically limited to those positions that require a Bachelor’s degree and fewer than two years of experience—commands the lowest wage rate, whereas Level 4—typically reserved for positions that require a Bachelor’s degree and at least 5 years of experience—commands the highest wage rate. The wage rate is also affected by the occupational classification the sponsoring employer chooses for the H-1B position. Certain computer-related occupational classifications, such as software developers, command a higher wage than other classifications, like computer programmers; however, the latter, according to USCIS, does not always require bachelor’s degrees for admission into the position. In March 2017, USCIS issued a policy memorandum stating that positions using the computer programmer classification may not be indicative of a specialty occupation because some computer programmer positions do not require at least a Bachelor’s degree for admission into the field. As a result, USCIS may deny H-1B petitions that rely on the classification of computer programmers if the sponsoring employer cannot show that the H-1B position qualifies as a specialty occupation. Each of these emerging trends is discussed in greater detail below.
“Level 1” RFEs
Many of these “Level 1” RFEs are for H-1B petitions that were filed with USCIS under the H-1B Cap on April 1, 2017. In these RFEs, USCIS asserts that the job description and supporting documents for the sponsored H-1B position are not supported by the level 1 wage details that are listed in the Labor Condition Application that was certified by the DOL. Specifically, USCIS notes that Level 1 wage rates are primarily “assigned to job offers for beginning level employees who have only a basic understanding of the occupation.” USCIS then challenges the sponsoring employer’s use of the level 1 wage based on a review of the employer’s position duties outlined in the H-1B petition, stating many of the duties outlined in the H-1B petition appear to require more than “a basic understanding of the occupation,” or involve more than “routine tasks that require limited, if any, exercise of judgment.” By invalidating the use of a level 1 wage on the LCA, USCIS is denying H-1B petitions with the assertion that the LCA does not sufficiently support the H-1B position.
When selecting a level 1 wage, sponsoring employers should be prepared to provide additional documentation or evidence to show that the H-1B position’s duties, while particularly complex and specialized so as to count as a specialty occupation, are normal for entry-level occupations within that field. Evidence that the sponsoring employer normally requires at least a Bachelor’s degree or its equivalent for entry into the position can show to USCIS that the position is one that not only constitutes a specialty occupation as outlined by the H-1B regulations, but that level 1 wage, which is reserved for positions that require fewer than 2 years of experience for entry into the field, is justified.
Computer Programmer H-1B Denials
In March 2017, USCIS issued a policy memorandum specifically addressing the use of the occupational classification of computer programmers qualifying as a specialty occupation with H-1B petitions. In the policy memo, USCIS noted that sponsoring employers were no longer able to rely solely on the DOL’s Occupational Outlook Handbook (OOH), to show that computer programmers typically have at least bachelor’s degrees for entry into the position. In turn, sponsoring employers “must provide other evidence to establish that the particular position is one in a specialty occupation.” USCIS also calls into question whether a computer programmer position filed under a level 1 wage counts as a specialty occupation that requires at least a bachelor’s degree for entry into the position. Because USCIS determined that a computer programmer position is not one that normally requires a bachelor’s degree for entry, and the level 1 wage is reserved for positions that require only “a basic understanding of the occupation,” USCIS asserts that a computer programmer position filed with an LCA for a level 1 wage cannot, by itself, qualify for an H-1B visa.
Employers should be prepared to provide additional evidence, particularly evidence of its own hiring practice, to show that the company requires, at a minimum, a bachelor’s degree for admission into the position.
Additionally, the Administrative Appeals Office (the USCIS unit to which employers may appeal denied H-1B petitions as well as other nonimmigrant and immigrant classifications) is affirming the vast majority of computer programmer-related appeals following the issuance of the USCIS policy memorandum. Appeals decisions can be found on the USCIS website.