“Emerging Trends for H-1B Petitions”


“Over the past several months, some trends have developed that pose challenges for employers taking part in the H-1B program. U.S. Citizenship and Immigration Services (USCIS) is issuing requests for evidence (RFEs) for H-1B petitions that challenge the H-1B position's level 1 prevailing wage classification….and the agency is denying H-1B petitions for computer programmer-related assignments.

“…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 five 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…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.

“Many of these wage 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…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. 

“…In the March 2017 USCIS policy memo, the agency 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. 

“…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…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.”

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