Work in the Time of COVID-19: FAQs for Employers

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The most popular nonimmigrant “professional” work visa, called the H-1B, is facing more headwinds. It is already subject to a visa lottery due to a cap on the number of visas authorized annually by Congress (85,000), with more petitions than there are visas available (this year: 195,000, last year, 225,000). A professional qualified for an H-1B visa holds a “specialty occupation”. A specialty occupation is considered to be one that requires the minimum of either a US Bachelor’s Degree, foreign equivalent, related work experience, or combination thereof, would equal such a degree. Frequently, a professional evaluation is needed to analyze a foreigner’s education and/or employment experience to equate it with a US Bachelor’s Degree. A three to one formula often applies for work experience, meaning that three years of related work experience can be considered equal to one year of US college. Thus, twelve years of incremental related work experience might equal a US Bachelor’s Degree.

Assuming an H-1B visa petition were to be picked in the lottery, it faces a new challenge. By a policy memorandum dated July 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that effective September 11, 2018, it will no longer issue a Request for Evidence (RFE) for a petition it is reviewing, but will instead either approve or deny based upon that review. This latest policy memo therefore permits a denial based upon what the USCIS calls “lack of sufficient initial evidence”. Formerly, USCIS would issue an RFE, effectively allowing, a “second bite of the apple”. USCIS maintains that this policy is necessary to discourage “placeholder” filings, that is defective or incomplete H-1B petitions filed in an attempt to make it into the H-1B lottery, which, if selected by lottery and issued an RFE, could be supplemented later.

Recently, such RFE’s had become ubiquitous. In fact, the USCIS issued RFE’s for nearly 70% of all nonimmigrant petitions filed in the last quarter of 2017. RFE’s have increased by 300% just between the 3rd and 4th quarter of fiscal 2017. One surmises that, rather than issue an RFE and have to review the copious materials that the diligent prospective employer files in response, USCIS has concluded it is more efficient to approve or deny the petition as filed.

Therefore, what is the best way, post 09/11, to ensure that an H-1B petition, selected by lottery, is also approved? One way is to heed what RFE’s used to focus on. RFE’s of recent date often quibbled over what constituted a “specialty occupation”. Even though the beneficiary of the H-1B visa may possess a Bachelor’s or even a Master’s Degree, supplementary information from a federal governmental source, like the Occupational Outlook Handbook or Bureau of Labor Statistics showing that this is the norm, is advisable.

Demonstrating that a Bachelor’s Degree is normal for the job title in question by providing a sampling of advertisements from well-known websites like and could be helpful.

Further, supplying an organizational chart of the prospective petitioner’s staff is useful if it shows that employees in the same position as the beneficiary of the H-1B petition all possess a Bachelor’s Degree, by attaching those individuals’ resume, degree and transcripts as proof.

Finally, it can be prudent to contact an educational evaluation service to provide a professional opinion, usually by a university professor, that the position is indeed a “specialty occupation” requiring a Bachelor’s Degree.

Another type of RFE questioned the wage level to be paid. By way of background, an H-1B petition must be preceded by an approved labor certification application from the US Department of Labor, signifying that the proffered wage is equal to or greater than the local median wage. In the form which is online filed for this certification, the wage level must be identified. There are 4 choices for the wage level, basically broken down by amount of experience and autonomy. Wage levels can only be determined after selecting an accurate job title within the Standard Occupational Classification found at Department of Labor’s Occupational Information Network at and comparing that job description to the prospective position the H-1B beneficiary will perform. Not infrequently, the USCIS issued an RFE when the prospective employee was to be paid at “Wage Level 1”, arguing that a Bachelor’s Degree should not be required for a Wage Level 1 position. This reasoning, at least to date, has been satisfactorily refuted as follows: every employee, even a medical doctor or university professor, commences a career at an entry level position, and therefore is paid at the lowest wage level. Since many H-1B petitions are filed by employers desirous of continuing to employ recent graduates who are on their Optional Practical Training Period at the conclusion of their F-1 student visa, this argument has worked – at least to date.

If an H-1B visa petition is selected in the H-1B lottery, supplying the information suggested above as part of the petition could decrease the possibility of a denial by USCIS. No approvals or denials implementing this new policy have been issued by USCIS to date. All we can do is stay tuned as to how the USCIS will interpret this new policy and meanwhile, file thorough H-1B petitions with strong corroborating evidence identified above.

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