Labor Condition Application - Wage Level RFE
USCIS RFE Reason Explanation
As explained in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), USCIS must determine whether the attestations and content of the Form ETA 9035/9035E Labor Condition Application for Nonimmigrant Workers (LCA) properly correspond to and support the H-1B petition.
Additionally, Title 20, Code of Federal Regulations (20 CFR) section 655.705(b) states in pertinent part:
For H-1B visas, the following agencies are involved: [Department of Homeland Security (DHS)] DHS accepts the employer's petition (DHS Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition…
Further, Title 8, Code of Federal Regulations (8 CFR) section 214.2(h)(4)(i)(B)(1)(i) states:
Before filing a petition for H-1B classification in a specialty occupation, the petitioner must obtain a certified labor condition application from the Department of Labor in the occupational specialty in which the alien(s) will be employed.
Finally, 8 CFR 214.2(h)(4)(i)(B)(1)(ii) states:
Certification by the Department of Labor of a labor condition application in an occupational classification does not constitute a determination by the agency that the occupation in question is a specialty occupation. USCIS will determine whether the labor condition application involves a specialty occupation as defined in section 214(i)(1) of the Act and properly corresponds with the petition. USCIS will also determine whether all other eligibility requirements have been met, such as whether the alien for whom H-1B classification is sought qualifies to perform services in the specialty occupation as prescribed in section 214(i)(2) of the Act.
Accordingly, you must establish that your petition is supported by an LCA that properly corresponds with the proffered position.
To satisfy this requirement, you submitted:
- A description of the beneficiary’s duties;
- A certified LCA;
- Information about your organization’s products or services;
- Copies of job postings;
- A description of the position from the U.S. Department of Labor’s Occupational Outlook Handbook or ONET OnLine (ONET);
- and An analysis of the position.
You have provided an LCA that is certified for the occupational classification of Marketing Managers with a Level I wage designation.
The U.S. Department of Labor Policy Guidance, Employment and Training Administration Prevailing Wage Determination Policy Guidance Nonagricultural Immigration Programs, Rev. November 2009 (DOL Policy Guidance) states that all prevailing wage determinations shall initially be considered an entry level, or Level I wage. The employer's requirements for experience, education, training, special skills, and supervisory duties shall then be compared to those generally required for an occupation as described in the U.S. Department of Labor’s O*NET.
The DOL Policy Guidance provides several guides, such as the Wage Level definitions and Appendix A: OES Prevailing Wage Guidance to help employers determine appropriate wage levels.
Step 2 – Experience:
The OES Prevailing Wage Guidance (Appendix A) states in pertinent part:
Compare the overall experience described in the O*NET Job Zone to the years of experience required by the employer on the prevailing wage determination request form…
For occupations in Job Zones 2 through 5, if the employer’s experience requirement is:
- At or below the level of experience and SVP range, make no entry in the Wage Level Column. In the low end of the experience and SVP range, enter a 1 in the Wage Level Column.
- In the high end of the experience and SVP range, enter a 2 in the Wage Level Column. Greater than the experience and SVP range, enter a 3 in the Wage Level Column.
Points should be added for the amount of experience only if the required work experience is above the starting point of the O*NET job zone range. Education required for the job is addressed in Step 3 of the worksheet, and therefore the years of education required should not be considered in Step 2. However, if education is considered as an equivalent amount of experience in Step 2, it should not also be considered in Step 3.
A marketing manager is classified in the ONET as a Job Zone 4 position with an SVP range of 7 to <8, which corresponds to an experience requirement of over 2 years, up to 4 years. Your position’s requirement of +3 years of experience is greater than the experience range identified by the ONET. This would require the wage level to be increased by 2. As all positions begin at wage level 1, the result would be a wage level 3 position.
The record indicates that the proffered position requires experience beyond what is generally required for the occupation and wage level designated on the LCA. Therefore, it appears the wage level designation is inconsistent with the proffered position.
You may submit additional evidence to satisfy this requirement. Evidence may include, but is not limited to:
- A Form ETA-9141, Application for Prevailing Wage Determination, certified by DOL for the proffered position;
- Documentation, such as an official position description, job offer letter, or job announcement, which was used as a basis for selecting the occupation and wage level certified on the LCA. The documentation should detail the tasks, knowledge, and skills of the proffered position. Additionally, the documentation should describe the experience and education requirements for the proffered position;
- A letter explaining how the wage level designation that you have provided corresponds to the proffered position;
- and/or Documentation to support that the wage level designation on the LCA properly corresponds to the proffered position.