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Second Requests for Evidence for H-1B Petitions

H-1B employers and beneficiaries have recently been checking the USCIS case status website after a Request for Evidence (RFE) response has been submitted hoping to see that the case has been approved. Unfortunately, instead, many have been seeing that a second RFE has been issued in the case.

A second RFE is not an indicator that a petition is going to be denied. It just means that USCIS has additional questions they want to ask.

These second RFEs seem to be a new trend in USCIS. They are related to the LCA having a Level 1 Wage. They quote the Depart of Labor’s Occupational Outlook Handbook for the applicable SOC code. The RFEs question whether “a level 1 wage designation would correspond to the proffered position described in the petition.” After mentioning some of the job details, the RFEs later suggest that a position may not correspond to a Level 1 Wage if the position encompasses more than a basic understanding of the occupation or appears to contain more than routine tasks that require limited if any, the exercise of judgment. 

The timing of these RFEs suggests that they may be related to the “Computer Programmer” memo that was issued in late March 2017. Although that memo specifically applied to the Programmers, it indicated that the wage level chosen for a position is a relevant factor in determining specialty occupation. It is, therefore, more important than ever to ensure the proper SOC code and wage level are selected prior to filing an LCA needed for an H-1B worker.