Even though a foreign national may have felt like a winner in the H-1B Lottery, a blue sheet Request for Evidence (RFE) from USCIS leaves many feeling like a loser, lost in paper.
Drafting a winning response to an RFE requires careful attention to the facts, regulations an current USCIS policy. The following points may prove helpful:
The LCA
In reviewing H-1B petitions, USCIS determines whether the attestations and content of a Labor Condition Application (LCA) corresponds and supports the H-1B visa petition.
Officers ensure the wage level designated by the petitioner corresponds to the offered position. For example, if the employer designates a position as a Level I, entry-level position, this may contradict the claim that the proffered position is complex, specialized, or unique compared to other positions within the same occupation (SEE http://www.foreignlaborcert.doleta.gov)
If your employer is paying a level I wage, it will be very difficult to obtain a favorable decision. In the response, the employer may consider offering evidence concerning similarly placed workers in the same occupational classification to overcome information from this FLC wage survey.
DISTINGUISH THE POSITION FROM OTHERS
USCIS reviews the jobs duties to distinguish the offered position form others within the same occupation using wage level designation. It is important to highlight the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties.
Employers should distinguish the offered position having complex responsibilities with those that are routine. The Employer should consider other key points. Does the position require the foreign national to make judgments on a daily basis? Is the foreign national supervised or does he or she have a high degree of discretion in making decisions? Is the foreign national relying on high level of understanding as opposed to a basic understanding that occurs at a less senior level?
There is no question that the wage level offered to a foreign National in an H-1B petition is a critical element for a successful H-1B application.
Employers that filed an H-1B application with an offered wage that is not at least a level II wage or above will need to address the lower wage with strong supporting evidence
