Level 1 Wage H1B for Chinese Engineering Graduate Approved

Chinese Science and Engineering Graduate Granted Level 1 Wage H1B Visa

Year: 2017
Nationality: China
Industry: Packaging Manufacturing
Company: Multimillion dollar corporation with hundreds of employees
Position: Operations Specialist
Case: Level 1 Wage H1B Petition

Challenges In This Level 1 Wage H1B Visa Case:
• USCIS often challenges applicants for H-1B visas at level 1 wages. This level represents entry-level wages and are the lowest level of wage out of 4 levels recognized
• There is no fixed standard to measure the suitable salary for this position
• USCIS’ assessment is contradictory and goes against common sense
• No precedent to guide legal strategy for this type of case

Timeline:
In March 2017, the company entrusted Tsang & Associates (Zang Dikai United Law Firm) to apply for H-1B visa for their employee Mr. Li. At the end of August, the company received a notification of a request for supplementary documents (RFE). The supplementary documents were submitted in October, and this level 1 wage H1B application was successfully approved in November.

BACKGROUND OF THIS LEVEL 1 WAGE H1B APPLICATION CASE

A common risk point in immigration law is that the law is easily politicized. The inauguration of the Trump administration revealed new challenges to otherwise routine immigration cases in 2017.

After completing his master’s degree at a prestigious university in Southern California, Mr. Li was hired by a packaging manufacturing company that was willing to apply for an H-1B work visa for him. The job position was operations specialist, which required the analysis of statistical data, the company’s business weaknesses, and corresponding solutions. 

To meet H-1B provisions, his position as an operations specialist must be deemed a “specialty occupation”, meaning that it generally requires a bachelor’s degree and involves complex job duties in order to qualify as an H-1B position.

The company in this case had been a client of our firm for many years. We had handled their H-1B petitions on dozens of occasions, rarely receiving RFE responses and never experiencing any denials.

The major challenge this time was that the Trump administration had issued new forms of Requests for Evidence or RFEs (a challenge to the petition seeking additional documentation), challenging the notion that a “specialty occupation” could also fit in as an entry level, level 1 wage position. The application required that H-1B visas fit into one of four wage categories, with level 1 wage reserved for entry level positions.

Essentially, USCIS was suggesting that a complex professional position could not also be entry level, a position that could not possibly be true. Therefore, it was an unusual challenge because it was entirely unclear how USCIS wanted the case to be addressed.

Further, it seemed that anything we argued might be interpreted by USCIS as a contradiction. If we argued that the case was indeed entry level, then USCIS might argue that the job is not complex. If we argued that the job is indeed complex, as H-1B stipulations require, then we risked the USCIS denying the case on the grounds that it was not an entry level position. The challenge was in arguing the right balance between the two, and it was not immediately clear what that balance was.

Further, following Trump Administration policy changes, many immigration firms were finding that routine H-1B cases were being denied. This situation presented a unique kind of challenge, as there was no precedent available to guide our RFE strategy. Our firm was nevertheless determined to beat the odds, and we handled this case carefully and comprehensively.

Lawyer Comments On The Case

The biggest challenge in this level 1 wage H1B case was that USCIS had directly linked the salary level to the professional position and determined that a professional position cannot be an entry-level salary. 

In reality, there is no real inherent conflict between a professional advanced education position and an entry-level position. Each position has an entry process for new employees in the industry, starting from the most basic, gradually improving professional ability and experience in the work on the basis of the theory already mastered, and the salary will also increase accordingly. The salary level and the professional degree of the position cannot be equated.

KEYS TO SUCCESS IN THIS LEVEL 1 WAGE H1B CASE

The key to the success of this case was demonstrating why entry-level positions at base salaries also require complex job duties. More specifically, the RFE posed a challenge that Mr. Li’s position was really a specialty occupation. The Immigration Officer argued that Wage Level I positions only hold a basic understanding of the occupation and only perform routine tasks and that therefore we had not demonstrated that it was a specialty occupation requiring a bachelor’s degree.

Tsang & Associates’ strategy was to make a comprehensive, common-sense argument. To better respond to the RFE, our legal team investigated how typical entry-level operations specialists work in the industry and applied this information to our argument.

To qualify for an H-1B specialty position, the beneficiary must meet at least one of four standard conditions. The team at Tsang & Associates described in detail how Mr. Li’s position fit all four of the standard conditions.

1. “Bachelor’s degree or above” is the minimum entry requirement for Mr. Li as an operations specialist.

In order to meet this requirement, Tsang & Associates submitted the “Occupational Outlook Handbook 2017 edition” published by the US Department of Labor. The handbook states the job category, mechanical operations specialists, and that for such occupations, a bachelor’s degree is the typical entry-level education and an essential prerequisite for the position.

We were able to support this with additional resources, for example, from O*Net, which identified mechanical operations specialists as requiring no less than a bachelor’s degree. In addition, we further searched for other companies of the same size that recently recruited operations specialists. By comparison, it was not difficult to see that other companies in the industry also paid the same level of wages for the same position with similar job requirements.

2. Higher educational requirements are not uncommon for corresponding occupations in other similar companies in the industry.

In this point, we strengthened the arguments that we had made in the original submission. We did so by again referring to the Occupational Outlook Handbook. Further, our firm did independent research to demonstrate that other operations specialist firms were putting out job postings for mechanical operations specialists that listed bachelor’s degrees as a requirement for the position.

We again referred to the Occupational Handbook which listed some of the skill sets that are required of mechanical operations specialists, such as creativity, listening skills, math skills, mechanical skills, and problem-solving skills. This is precisely the skill set that is developed in higher education. We again referred to the job postings from other companies that showed that degrees were common in the industry while also consistent with the wage level being offered.

3. The company’s previous recruitment required a bachelor’s degree for this position.

This point too was addressed in the original submission, but we needed to show that Mr. Li qualified for the level 1 wage H-1B without question. To show that our client satisfied this requirement, we were able to produce past job postings from our client showing that a bachelor’s degree was indeed the base requirement for the position.

Additionally, we reinforced this by producing and explaining the company organizational chart, showing where the position was in the company and how one with a bachelor’s degree could only fit in at that position considering the company structure. Further, we produced the company’s past job advertisements demonstrating that they had long required a bachelor’s degree and had long offered a salary that was consistent with what Mr. Li was being offered. We argued that it was not only consistent with H-1B requirements, but also consistent with what USCIS was requesting in the RFE.

4. The nature of the job requirements is extremely specialized and complex, and the knowledge required to fulfill the job requirements is usually linked to a bachelor’s degree or above.

Tsang & Associates’ specific method of proving the regulation was helping the company representative write a letter explaining Mr. Li’s job responsibilities, submitting documents detailing his work projects, and submitting his work report. In addition, we went into as much detail as possible, describing and explaining his job duties in detail. It was not just a simple collection of documents from the client, we helped the client carefully prepare new documents to explain his job and the specialized skills required.

5. We resolved the issue of the “level 1 wage (basic salary)” itself.

USCIS staff argued that the base salary was not appropriate for specialized positions, as entry-level staff only needed a “basic understanding” of the job requirements. We argued that this cannot be a deciding factor in denying Mr. Li’s case, as the position is indeed an entry-level position within the company. However, an entry-level position does not deny the complexity of the position itself and the level of education required.

Different job types have different entry-level positions, and they vary in complexity and specialization. For example, entry-level lawyers often hold a Juris Doctor degree, and entry-level architects must undergo extensive educational training as a prerequisite to enter the profession. Mr Li had never worked for the company before and was expected to have a “basic understanding” of his profession within the company. Therefore, we proved that whether it is a position with a level 1 wage, showing professional work skills, or having a higher education background, the three are not necessarily related. All jobs, no matter how complicated and professional, require a process to get started.

OUTCOME OF THIS LEVEL 1 WAGE H1B VISA CASE

Although this was a brand-new type of RFE notification, the H1B attorneys at Tsang & Associates working on this case were able to give a strong, favorable and reasonable reply, and finally won this level 1 wage H-1B case. We insisted on doing more than the case required, but we felt it was worth it, helping an engineer start his career and overcome a difficult visa challenge.

The case was officially passed on November 17, 2017. Our client was very satisfied with the result, even though he was prepared to be rejected, because his other classmates had also received such notifications, but they were still rejected after providing additional information.

Read more of our H1B visa resources & success stories, or find out how we can help with H1B services. Our team is dedicated to finding creative solutions for legal problems and we’d love to talk with you about your case, no matter how complicated it may be.

(Note: To protect privacy, the names of the parties involved in the case are pseudonyms)

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