Last year USCIS unleashed a flood of Requests for Evidence (RFE), asking employers to prove a Wage Level 1 (WL1) position qualifies as a specialty occupation. After putting the H1B community through the ringer, the agency ended up denying a number of these cases. The denials stated that the WL1 positions did not qualify as “specialty occupations” because the amount of supervision required meant the position did not require “theoretical and practical application of a body of highly specialized knowledge.”
According to the rationale in the denials, even though the work product of a new engineer can only be done by someone with an engineering degree, and the supervisor is reviewing work product to ensure it meets established engineering standards, the entry level engineer is not showing a “theoretical and practical application of a body of highly specialized knowledge.”
Attorneys appealed these cases to the AAO, and presented arguments for why a WL1 position requires application of specialized knowledge and consequently can be a specialty occupation.
Last week the AAO began releasing decisions on this issue. However, the AAO did not address the legal arguments in the appeals. Nor did the AAO even address the rationale for the underlying denial.
In what can be described as a masterpiece of obfuscation, the AAO ignored the specialty occupation issue entirely. Rather, the AAO analyzed the position description to determine if the employer selected the correct wage level. If in its opinion the wage level was incorrect, the AAO denied the appeal because the LCA did not match the petition.
In short, the AAO creatively found ways to avoid the Service Center’s decision on the merits, while still denying the petitions. No doubt internal agency disagreements played a role in how the AAO framed its decision. The compromise was to avoid the issue for now and deny cases on an acceptable basis.
The issue is not dead. USCIS has preserved the possibility that it can revive this issue later.
But the entire affair raises more questions. According to the statute and agency comments in rulemaking, USCIS has a very limited role in the H1B process. It determines two things: is it a professional occupation; and does it require theoretical and practical application of a body of highly specialized knowledge.
In contrast, DOL has authority over wage levels, and the entire LCA process. According to statute and regulation, DOL has a very precise mechanism for ensure the correct wage level is included on the LCA. Employers are required to post an LCA for a period of time. If US employees or unions disagree, they may raise the issue directly with DOL. Nothing in the statute gives USCIS a role in this process, nor does it have special insight or ability to resolve wage issues.
What statutory authority is USCIS exercising to make this determination? (you will wait a long time for an answer to that).
The problem with the AAO’s decisions on this issue highlights a long standing problem with USCIS. It continually exercises authority over areas that are beyond its statutory mandate.