The short answer is yes, but it should be used very carefully, and only for certain job categories.
The Department of Labor has assigned four different “wage levels” to various categories of jobs in order to give you an idea of what similar jobs typically pay at the entry-level and at more advanced levels. In 2017, USCIS suddenly began issuing an overwhelming number of RFEs implying that positions paid at wage level 1 could never qualify for an H1B. These RFEs claimed that wage level 1 jobs are only for “beginning-level” employees who need supervision, and could therefore not possibly require a specialized bachelor’s degree for entry as required for an H1B.
When considering a complex job like neurosurgery, for example, these RFEs compared the complex knowledge necessary to become a new neurosurgeon with the lower level of knowledge required to enter a lower-skilled position (a new administrative assistant, for example), arguing that because the level of skill needed to perform neurosurgery was so high in comparison, wage level 1 couldn’t possibly be appropriate. Another version of the RFE would argue that because the employer had selected wage level 1, they were admitting that the job didn’t require a degree.
These RFEs completely ignored the fact that all jobs begin at wage level I, regardless of the level of experience and education required for entry. Even occupations that are inherently complex, such as surgery, begin at wage level 1. The proper way to decide what the wage level should be is to compare the requirements of your job with the typical requirements for similar positions, NOT to compare the requirements of your job with all other jobs.
The minimum requirements for a new administrative assistant, for example, are vastly different from the requirements for a new neurosurgeon. On the first day of their new careers, however, each will start at the wage level 1 that is within their respective job category. While this wage level 1 administrative assistant will not qualify for an H1B because her position probably does not require a specialized bachelor’s degree, the new neurosurgeon will certainly qualify, regardless of the fact that she is a brand new surgeon starting at wage level 1.
Although a wage level 1 neurosurgeon can qualify for an H1B, however, this doesn’t mean that every wage-level 1 neurosurgery case will be approved. You must also prove that wage level 1 is actually the correct level for your particular case. In my next post, I’ll be discussing the right way to determine your wage level in a bit more detail.
If you have general questions on this topic, feel free to leave a comment and we will try to respond. Please note that I cannot respond to questions regarding the specific facts of your case on this blog, but I would be happy to discuss these questions with you in detail during a consultation! You can schedule an appointment here.
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