How Is The Wage Level Decided In H-1B Petitions?
The Department of Labor has provided guidance and classification systems for determining which of four wage levels should apply under its OES wage classification system. An entry-level position would normally equate to a Level 1 wage, even though an entry-level position can still be specialized and complex and qualify for an H-1B visa. Usually, a position that requires some experience would equate to Level 2, Level 3 would be well experienced, and Level 4 would be expert level.
Can A Position With A Level 1 Wage Qualify For H-1B Status?
A position with a Level 1 wage can qualify for H-1B status. In the most recent year, USCIS has begun to assert that a Level 1 salary is somehow below the professional level of an H-1B specialty occupation. However, that is not correct. Indeed, we have 26 years of approvals to-date where people have qualified for H-1B status with a Level 1 wage. The correct focus should be on whether the position itself is sufficiently specialized and complex to qualify under the H-1B visa category. Common examples that people may be able to relate to and understand may include: attorney, doctor, architect, or other licensed professionals. Even persons beginning their careers at entry-level in those jobs must be well-credentialed and have a license. Entry-level roles in those jobs are specialized and complex, probably well beyond the floor of what would qualify for an H-1B visa status. So yes, Level 1 can qualify for H-1B.
Is The H-1B Limited Only To STEM Jobs?
H-1B visas are not limited only to STEM jobs. Under the current regulations, any position that is sufficiently specialized and complex can qualify. The regulations specifically note that fields including: architecture, engineering, math, physical science, social science, medicine and health, education, business specialties, accounting, law, theology, and the arts may all qualify. The regulations also point out that the list is not restrictive, and that specialize knowledge work can include those occupations and many others that may not be specifically listed as long as they are sufficiently specialized and complex.
Additional Information on the USCIS 2017 RFE Blitz on Pending H-1B Cap Petition Matters
This summer we have certainly seen a very large increase in the number of requests for additional evidence coming from USCIS in connection with H-1B cap cases. Nonetheless, that should not necessarily mean that there are any irresolvable problems with people securing H-1B visa status. It is our hope that even though there are certainly a much larger numbers of RFE requests being sent this year, attorneys will be able to fully document and file robust responses with USCIS, and that most of those cases will be ultimately approved.
If that does not happen, attorneys are certainly working hard through these responses to document and build the case record in preparation for litigation, if needed. A number of immigration attorney organizations have begun conducting training programs, conferences, and follow up telephone conferences to talk with attorneys in preparation for appeals and litigation, which we hope will not be necessary, but are prepared to pursue if needed.
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