Frequently Asked Questions On H1B Wage Level 1 RFEs

Just as employers and their respective attorneys were getting ready to file thousands of H1B cap subject petitions for fiscal year 2018, the U.S. Citizenship and Immigration Services (USCIS) released a memorandum dated March 31, 2017 that called into question whether a position classified as a “computer programmer” may qualify as an H1B position, especially when a level 1 wage is listed on the labor condition application (LCA). Based on the requests for evidence (RFEs) issued following the release of the memo, it has become clear that the USCIS is interpreting this memo broadly, calling into question the validity of a wide variety of H1B petitions that propose to pay level 1 wages. To that end, MurthyDotCom is providing answers to this set of frequently asked questions (FAQs) to help explain the issues generally being raised by the USCIS in these wage level 1 RFEs.

1. I received an RFE questioning the “Wage Level 1”. What is the issue USCIS is questioning?

The USCIS is asking for more information about the wage level that was selected on the form ETA 9035/9035E, more commonly referred to as a LCA, used to support your H1B petition.

2. What is an LCA?

The LCA (form ETA 9035/9035E) is a form submitted to the U.S. Department of Labor (DOL) prior to filing an H1B petition, which contains attestations by the employer regarding compliance with the requirements of the H1B program, including payment of the prevailing wage for the offered H1B position.

3. What is a prevailing wage?

The prevailing wage is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.

4. What factors are considered for the prevailing wage?

The relevant factors in determining a prevailing wage rate are the nature of the job offer, the area of intended employment, and job duties for workers that are similarly employed.

5. Does an H1B worker have to be paid the prevailing wage in order to comply with H1B requirements?

The H1B petitioning employer is required to pay the higher of the prevailing wage or the actual wage, which is the amount that employer pays to its other employees with similar experience and qualifications for the job in question.

6. Why does the government care what I am being paid?

The U.S. Department of Labor generally requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers in similar jobs.

7. Can I just file the H1B without an LCA? Won’t this solve the wage level 1 problem?

Every H1B petition must be supported by a LCA certified by the DOL.

8. Now that I have been issued a level 1 RFE, can I just get a new LCA that is certified for a higher wage level?

No. The LCA must be certified at the time of filing the H1B petition. A new LCA certified after filing would not be a valid LCA supporting that H1B petition

9. How is the wage level determined?

The wage level is determined by the petitioning employer’s minimum requirements for the position. The requirements include the minimum education necessary to competently perform the job, and the minimum amount of experience. Other factors are also considered, including any required special skills.

10. The RFE we received quotes language from some guidance about the job duties being “routine” and “basic”? Where is this language from?

This language is from a 2009 DOL guidance document.

11. The RFE I received states “…by designating the proffered position at a level I wage, you indicate that the proffered position is an entry-level position of a comparatively low level relative to other positions within the occupation.” What does this mean?

Another requirement for an H1B petition is that the job be a “specialty occupation” meaning it requires at least a bachelor’s degree for normal entry into the position. The RFE is hinting here that the wage level 1 makes this particular position too basic to qualify as a specialty occupation.

12. This guidance policy keeps mentioning PERM procedures. Is this appropriate for determining the H1B wage level?

This guidance is for the Employment and Training Administration (ETA) of the DOL, as the ETA is responsible for determining prevailing wages for PERM (green card) positions. The guidance states that “the same policies and procedures shall be followed for the permanent labor certification program [PERM] [and] the nonimmigrant program pertaining to H­1B or H­1B1 professionals in specialty occupations.”

13. What does this guidance say about the wage level 1?

The guidance states that level 1 wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees should be performing basic tasks that only require a limited exercise of judgment. The employees should be closely supervised and their work should be checked for accuracy

14. I work for an IT consulting company at an end-client site. Is this a problem for supervision?

Even though an H1B employee works at an end-client site, the employer-employee relationship still must be established. That means that the H1B petitioning employer, rather than the end-client, should control the direction of the H1B employee’s work.

15. I have an employee who has been working here for 5 years on H1B. Even though he is performing more complex tasks, his job position has not changed and he is still technically working in the same job as when he first started working for the company. This job is a wage level 1. What should I do when filing the H1B extension?

The H1B petition must be supported by an accurate certified LCA. You should speak to a Murthy Law Firm attorney to discuss the actual requirements necessary for the job you are offering.

16. I believe that this entry-level position qualifies for H1B. Can I fight the wage level 1 RFE?

Yes! The USCIS memo does not prohibit the approval of H1B petitions filed requesting a level 1 wage. But, moving forward, we expect to see more employers opting to select wage level 2 or higher on many H1B petitions, if only to avoid the problems of wage level 1 RFEs.

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