USCIS has been very active and relentless in raising the Wage Level I issue in many thousands (if not tens of thousands) of requests for evidence (“RFE”) since June 2017. It has become evident that a successful Wage Level I RFE response must balance very carefully the complexity (or the “specialty occupation”) vs. the entry-level nature of the position. However, many petitioners are relying (some almost exclusively) on a third-party professor opinion letter to make these arguments and our experience and reported USCIS denials suggest that relying on a professor opinion alone may not be sufficient.
The Evolution of the Wage Level I RFE
The first time we saw Wage Level I RFEs was in early June 2017 and the main targets were H-1B petitions filed in April 2017 under the annual H-1B cap. USCIS has since expanded the scope and now any H-1B petition is a possible target. The Wage Level I RFEs are essentially raising the argument that the duties described in the petition appear to go beyond entry-level position and, as a result, the LCA with its Wage Level I salary does not appear to match the position. A variation appears to be that the position may not qualify to be a specialty occupation.
The Third-Party Professor Opinion Letter
In the past, when USCIS had raised an RFE dealing with specifics of the position, such as whether it is specialty occupation (or that it normally requires a bachelor’s degree or higher in a specific field), petitioners have often relied on a third-party opinion, often by a professor with expertise in the field, to help make the arguments that the position, as it was described in the petition, is specialty occupation. In many cases, petitioners would simply include this letter, with minimum supporting documents, in the RFE response and many cases were actually successful.
When faced with the Wage Level I RFE, many petitioners also sought to rely on the third-party professor expert opinion to help make the case that a position is entry-level and consistent with Wage Level I. Unfortunately, relying on such professor expert letter does not appear to be working as well as it may have done in the past. Specifically, we have seen denials where USCIS questions whether this kind of letter is suitable to make the Wage Level I position argument.
Below is a redacted excerpt of a recent Wage Level I denial decision which was shared with us:
[Y]ou submitted an advisory opinion of the proffered position from a college professor at [redacted] University. The professor opined that the duties of the proffered position are so specialized and complex that the knowledge required to perform these duties requires the attainment of a minimum of a bachelor’s degree in computer science, engineering or closely related field. The professor reached this conclusion by relying on your description of the position rather than any specific study of the position at your organization. There is no evidence that the professor knew any more about the specific duties of the position than what you provided. The professor does not demonstrate or assert in-depth knowledge of your business operations or how the duties of the position would actually be performed in the context of your business.
For instance, there is no indication that the professor visited your business, observed your employees, interviewed them about the nature of their work, or documented the knowledge that they apply on the job. The professor’s opinion does not relate the professor’s conclusion to specific, concrete aspects of your business operations so as to demonstrate a sound factual basis for the professor’s conclusions about the educational requirements for the proffered position.
This paragraph suggests that USCIS discounts heavily the professor’s opinion letter because the professor is not intimately familiar with the employer (operations, structure, policies and others) and the position (duties, skills, requirements, past practices, hierarchy). USCIS’s reasoning suggests that they may reject or discount the weight of most, if not all, third-party expert opinions because, by definition, they are not as intimately familiar with the employer or the actual position.
It appears that USCIS is looking for position analysis based on actual knowledge of the employer and the position, as evidenced by the way USCIS rejects the professor’s opinion:
Given the professor’s limited review of the duties of the position, based largely on the job description furnished by you, USCIS gives less weight to the professor’s opinion. The evidence does not distinguish the difference between the duties to be performed by the beneficiary and these normally performed by similar workers, and how the duties of the proffered position are more specialized and complex.
Should H-1B Petitioners Rely on Professor Opinions for Wage Level I RFEs? What Are the Alternatives?
We feel that the third-party professor opinion letters are helpful and should be one of the many arguments made in response to a Wage Level I RFE. However, we have seen petitioners rely almost exclusively on this kind of professor letter with little or no effort to make additional arguments. It appears that a professor expert opinion only may not be sufficient in Wage Level I RFE cases.
Our experience and results with Wage Level I RFE have been extremely favorable so far and for each of our Wage Level I RFE clients we have been drafting a company expert opinion letter. We have been working very closely with our clients to draft a detailed and thorough position analysis letter, usually to be signed off by individual at the petitioner who has intimate knowledge of the industry, the company, and the position. For example, we have been drafting extensive and nuanced (8-12 page) employer letters to be signed by a person at the employer who not only has ability to discuss the employer’s particular needs and requirements but also has years of industry experience.
This kind of “expert” letter can attest that the offered position is, in fact, entry-level and that it involves junior-level tasks which are performed under the supervision of other petitioner personnel. For example, the letter can describe specifically the employer’s past hiring practices for the same or similar position. Similarly, the letter can contrast the offered entry-level position with similar but higher-level positions. Because the author is an employee or has a role at the petitioner, this kind of a letter appears to be much more credible based on personal knowledge.
Similarly, the letter can provide detailed description and examples of the day-to-day tasks which are to be performed and also the specific ways in which the employer will provide training, guidance and supervision to the entry-level employee. This very specific information is likely to come across as much more credible if described by representative of the employer and not from an unrelated university professor.
We should mention that many Wage Level I RFE cases are being approved when the RFE responses have, at least partially, relied on third-party university professor opinion letters. As noted, we believe that such opinion letters are certainly helpful in making the case; however, we strongly recommend preparing and including detailed position and employer analysis letters from an internal petitioner “expert.”
Attorney Assistance with Preparing RFE Response
Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFEs. If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations. We also invite you to review our Wage Level I RFE response guide.
We are also happy and available to assist with a more comprehensive RFE response representation. Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.
As anticipated, the Wage Level I RFE has been widespread and has targeted variety of employers and positions. This issue has consumed many H-1B petitions and we expect that it will continue to linger for months or even years. When preparing RFE responses we caution employers to take the time and effort to prepare and submit full and complete RFE responses and while we believe that third-party expert letters are helpful, we feel such letters may not carry the burden of the RFE response on their own.
Our office will continue monitoring related developments and provide updates. Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including Wage Level I RFEs. Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics