NAFSA Resource on USCIS H-1B Adjudications and RFEs Questioning Level I Wage Selection

October 19, 2017

 

NAFSA’s International Student and Scholar Regulatory Practice Committee (ISSRP) and its Employment Based (EB) Subcommittee are aware of the evolving issue of H-1B Requests for Evidence (RFEs) related to the use of Wage Level I prevailing wage determinations (PWDs) and eligibility for H-1B classification.

Although most RFEs appear to have been issued in H-1B cap-subject cases, we understand that cap-exempt petitioners, including universities, have also received similar RFEs. This NAFSA resource provides some basic information on what is currently known, and a “back-to-basics” reminder of the legal framework surrounding the areas of concern.

Download the H-1B RFE Practice Resource

Contents

  • Background and Scope
    • Responding to RFEs
    • RFE Types
     
  • Addressing USCIS’s argument that Wage Level 1 is not appropriate for a specialty occupation
  • Remember the basics of what constitutes a specialty occupation
    • Degree level
    • Degree specialty
    • Beneficiary possesses the specialty degree
     
  • Occupations that have traditionally be viewed as “specialty occupations”
    • INA 101(a)(15)(32) definition of “profession”
    • Regulatory definition of “specialty occupation”
    • AAO Case Examples
    • Appendix D of DOL’s prevailing wage guidance
     
  • Other challenging RFE language linked to specialty occupation concept
  • Reminder of the “preponderance of the evidence” standard

NAFSA resources provide general information for educational purposes. They do not constitute legal advice, and are not a substitute for close and careful reading and application of relevant law and government policy. Individuals who need legal assistance should contact an experienced immigration lawyer.

Key H-1B Regulations

Government H-1B Links

NAFSA Resources