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FMG Law Blog Line

USICS Raises the Bar on Entry Level H-1B Visas

Posted on: August 31st, 2017

By: Kenneth S. Levine

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Companies that employ H-1B workers should be aware that USCIS has greatly elevated the scrutiny of “entry level” H-1B visa cases. Since April 2017 FMG Immigration Attorneys have advised clients that USCIS has telegraphed a clear intent to apply a stricter level of legal scrutiny to all H-1B visa cases. It is now apparent that one tactic to carry out this objective involves a novel legal argument that a “level 1” salary wage cannot qualify a position as a “specialty occupation.” Immigration Law practitioners across the U.S. have reported receiving this type of Request for Evidence (RFE) over the past few months.

In these RFEs USICS will generally summarize DOL’s “Level 1” regulatory definition and then argue that the entry wage level means that the sponsored position is not “specialized” or “complex” enough to merit an H-1B approval. Previously, for entry level H-B positions, USCIS would usually cite the Occupational Outlook Handbook in advancing an argument that the employer’s educational requirements did not qualify the position as a “specialty occupation.”

It is clear that USCIS has now adopted an internal policy that all level one H-1B cases will be treated as legally insufficient. FMG Immigration Attorneys are currently devising legal strategies to address this issue. It is expected that this trend will continue for some time and that ultimately the Agency’s “level 1” legal theory will be aggressively challenged in Federal Court.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

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