SUCCESSFUL H-1B RFE CASE

·         Year: 2017

·         Nationality: Spain

·         Adjudicated By: USICS

·         Industry: Engineering

·         Company: Mechanical Engineering Company

·         Position: Engineer

·         Case: H-1B Petition

·         Challenge:

    • USCIS challenging the Wage Level I of H-1B applicants

Strong legal advice and an impeccable command of the law can be the difference between H-1B approval and denial.  However, even with the strongest, most experienced, and most dedicated team, challenges can arise because of the political environment. The inauguration of the Trump Administration brought with it new challenges to once routine immigration cases.  Mr. Sombra was hired by a major southern California engineering company after completing his Engineering Master’s degree at a prestigious southern California university. However, the Trump administration had issued new forms of Requests for Evidence or RFE’s (a challenge to the petition seeking additional documentation). We had handled their H-1B petitions on dozens of occasions, rarely receiving RFE responses. Following Trump Administration policy changes, many immigration firms were finding that routine H-1B cases were being denied.

More specifically, the RFE posed the following challenges:

·         That the position was Wage Level I, and therefore the position was far too simple to correspond with the complex job duties of the position.

The beneficiary’s new position had been designated as “Wage Level I” in the original H-1B filing. All H-1B petitions must select one of four Wage Level positions, from I (at the lowest) to IV (at the highest). Immigration Officer reviewing the case argued that Wage Level I positions only hold a basic understanding of the occupation and only perform routine tasks, and only perform routine judgement, and thus the job duties described “do not correspond to the Level I wage description”. However, as a specialty occupation, it was critical to establish that Mr. Sombra’s job duties were inherently specialized and complex even though it was only Wage Level 1 position.

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.

KEYS TO SUCCESS

In order to respond to the RFE, Tsang & Associates felt that it was critical to make an appeal to common sense arguments and make a comprehensive response. This first included the need to establish that what was typical of entry-level engineers in the field and that such a position was inherently complex and specialized. Second, we had to demonstrate that a complex position like engineer would still be available as an entry level, “Wage Level I position”.

We were able to demonstrate this first by discussing what it is that mechanical engineers do and how the position is inherently complex. Under any circumstances, even the most rudimentary job duties of an engineer require extensive education in performing complex job duties, so a Wage Level I designation was not contradiction at all. Next, we demonstrated that the company in question had a need for overseas talent to make up for a massively high demand for engineers in the US. Next, we very carefully documented and explained how the four wage levels correspond to the job duties at each level at the company for engineers. This also entailed explaining in detail how the Mr. Sombra was to perform job duties that fit into the Level I wage. For example, we stated that like all Level I wage engineers, Mr. Sombra, hold less than five years’ experience and that all new hires fresh out of graduate school must necessarily fit into the Level I wage. Since Mr. Sombra met these criteria, he was unambiguously categorized under the wage I category. To strengthen the argument, we wrote in detail about how the company categorizes the Wage Levels II through and how Mr. Sombra did not meet the standards for experience and managerial responsibilities for those wage levels.

Just as importantly, it was critical to keep track of the bigger picture. The RFE only challenged the complexity of the position in relation to the starting wage. However, H-1B classification entails meeting just one of four categories and job complexity and specialization was only one of the four. We made clear that Mr. Sombra classified for H-1B status under all four categories. In other words, even if the Officer was correct in challenging the complexity of job duties by way of entry-level wages, it was irrelevant as he qualified under the other three criteria. Specifically, we argued the following:

·         A bachelor’s degree or higher or its equivalent is normally the minimum requirement for entry into Mr. Sombra’s engineering position;

In order to satisfy this requirement, Tsang & Associates submitted the Occupational Outlook Handbook 2017 edition, published by the US Department of Labor. It demonstrated that this labor category, mechanical engineers, holds bachelor’s degrees as being the typical entry-level education for this kind of position, and that a degree is almost always a prerequisite for the role. We were able to back this up with additional sources, such as from O*Net, which confirm that mechanical engineers require no less than bachelor’s degrees. While we satisfied this criterion in the original filing, we wanted to go further to conclusively demonstrate that this company typically required a bachelor’s degree for this position. We did this by conducting independent research on other corporations of similar sizes, that had also had recent openings for engineering positions. In these job openings we were able to demonstrate that other companies were paying the same position at roughly the same wage and performing the same complex duties. Therefore, there could be no conflict between paying Mr. Sombra this wage with this set of job responsibilities.

·         The advanced degree requirement was common to the industry in parallel positions among similar organizations and that Mr. Sombra’s position was so complex as that it could only be completed by someone with a degree;

In this point we strengthened arguments that we had made in the original submission. Tsang & Associates was able to meet this requirement by also referring to the Occupational Outlook Handbook. Further, our firm did independent research to demonstrate that other engineering firms were putting out job postings for mechanical engineers that listed bachelor’s degrees as a requirement for the position.

            We again referred to the Occupation Handbook which listed some of the skill sets that are required of mechanical engineers, 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.

·         The employer normally requires a degree or its equivalent for the position;

This point too was addressed in the original submission, but we needed to show that Mr. Sombra qualified for H-1B without question. To show that our client satisfied this requirement, we were able to produce past job postings rom our client showing that a bachelor’s degree was indeed the base requirement for that position. Additionally, we reinforced this position 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 job opening flyers from the company that also demonstrated that the company. We did this by producing 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. Sombra was being offered. We argued that not only consistent with H-1B requirements, but also consistent with what USCIS was requesting in the RFE.

·         The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor or higher

We were able to show that Mr. Sombra fit this requirement by demonstrating that he indeed had extremely complex and specialized job duties. This was done by helping the company President draft a letter describing his duties, submitting documents detailing his projects, and submitting his work reports. Further, we went into very great detail describing his job duties, and giving a percentage breakdown for each. This too was further elaborated on from arguments made in the original submission. This went much further than simply collecting documents from the client. This involved carefully helping our client draft new documents that explained in detail what his job entailed, and why it could be categorized as specialized.

Finally, we addressed the issue of Wage Level I itself. The Service argued that an entry level wage could not possibly be a specialty occupation because an entry level worker could only have a “basic understanding” of the job duties. We argued that this could not possibly be grounds to deny Mr. Sombra’s case because the requirement of a mere basic understanding of the occupation stems from the fact that it is an entry level position, but an entry level position suggests nothing with respect to the complexity or required education. There are entry level positions for many job positions that vary in terms of complexity and specialization. Entry level attorneys must still possess a juris doctor, entry level architects must still have extensive educational training as a prerequisite to entering the field. As Mr. Sombra has never before worked for this company, it is to be expected that he would only have a “basic understanding” of what his position within the company is. Accordingly, we were able to demonstrate that holding an entry level wage designation and performing complex job duties, requiring a higher education, were not at all mutually exclusive as all jobs, regardless of complexity, require an entry level.

 “When the RFE came in, I thought my case was done for.  Thankfully, Joseph and Chen- Cho were able to find why USCIS was in the wrong and helped me win my case”- Mr. Sombra

OUTCOME

Despite the fact that this was a completely new kind of RFE, our firm was able to secure a favorable response and we won the H-1B case. The case was ultimately approved on December 3, 2017. Our client was overwhelmingly happy about the outcome, as well as thrilled and relieved on account of the fact that he expected the case to be denied, much like similar cases.

Moreover, most of the cases that had received this form of RFE were denied. Months later they were overturned by the Administrative Appeals Office on much the same grounds that our case had argued for this client. With hard work and common sense, we were able to avoid a denial in this case.

 

*Name has been changed to protect client identity.

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