entry level jobs are poor candidates for h1b visas
TRANSCRIPT
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Entry Level Jobs Are Poor Candidates for H-1B Visas By Joseph P. Whalen (April 25, 2015)
In my perusal of certain recently posted H-1B AAO non-
precedent decisions, I noticed that certain themes stand out and that
some common threads run through them. This essay focuses on one
of those themes. It appears that AAO has run across numerous cases
where there is a claim that a proffered job is a “specialty occupation”
position but at the same time it is being offered at an entry level wage
rate on the LCA. These two conditions do not belong together. In fact,
it appears that AAO and the Service Centers are leaning towards
excluding all Level I and most Level II positions. Let us take a closer
look at the four existing wage rate levels used for LCAs.
Filing and obtaining approval (certification) of the Department
of Labor’s (DOL’s) Labor Condition Application (LCA) is a relatively
simple part of the H1-B petitioning process. DOL’s most recently
issued guidance of the possible wage levels is posted online. Below are
the basic descriptions of the four wage rate levels. The following is an
excerpt from page 7 of the
Prevailing Wage Determination Policy Guidance of November 11,
2009:
Level I (entry) wage rates are assigned to job offers for beginning
level employees who have only a basic understanding of the
occupation. These employees perform routine tasks that require
limited, if any, exercise of judgment. The tasks provide experience
and familiarization with the employer’s methods, practices, and
programs. The employees may perform higher level work for
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training and developmental purposes. These employees work
under close supervision and receive specific instructions on
required tasks and results expected. Their work is closely
monitored and reviewed for accuracy. Statements that the job offer
is for a research fellow, a worker in training, or an internship are
indicators that a Level I wage should be considered.
Level II (qualified) wage rates are assigned to job offers for
qualified employees who have attained, either through education or
experience, a good understanding of the occupation. They perform
moderately complex tasks that require limited judgment. An
indicator that the job request warrants a wage determination at
Level II would be a requirement for years of education and/or
experience that are generally required as described in the O*NET
Job Zones.
Level III (experienced) wage rates are assigned to job offers for
experienced employees who have a sound understanding of the
occupation and have attained, through either education or
experience, special skills or knowledge. They perform tasks that
require exercising judgment and may coordinate the activities of
other staff. They may have supervisory authority over those staff. A
requirement for years of experience or educational degrees that are
at the higher ranges indicated in the O*NET Job Zones would be
indicators that a Level III wage should be considered.
Frequently, key words in the job title can be used as indicators that
an employer’s job offer is for an experienced worker. Words such as
‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head
nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber)
would be indicators that a Level III wage should be considered.
Level IV (fully competent) wage rates are assigned to job offers
for competent employees who have sufficient experience in the
occupation to plan and conduct work requiring judgment and the
independent evaluation, selection, modification, and application of
standard procedures and techniques. Such employees use
advanced skills and diversified knowledge to solve unusual and
complex problems. These employees receive only technical
guidance and their work is reviewed only for application of sound
judgment and effectiveness in meeting the establishment’s
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procedures and expectations. They generally have management
and/or supervisory responsibilities.
The key words and phrases emphasized above can help
the petitioner prepare their case for submission or help them
realize that such a submission would be a mistake and wasted
effort. By way of example, AAO recently decided, in a non-
precedential decision, that the Wage Level listed on the Labor
Certification Application (LCA) indicated a position that, by its
very nature, simply cannot qualify as a “specialty
occupation” as required for an H1-B visa. Wage-Level I
indicates an entry level position that is quite low within any
organization.
“Finally, the petitioner submitted an LCA certified for a job
prospect with a wage-level I. This designation is indicative of a
comparatively low, entry-level position relative to others within the
occupation. FN6 That is, in accordance with the relevant DOL
explanatory information on wage levels, this Level I wage rate is
only appropriate for a position in which the beneficiary is required
to have a basic understanding of the occupation and would be
expected to perform routine tasks that require limited, if any,
exercise of judgment. This wage rate also indicates that the
beneficiary would be closely supervised; that his work would be
closely monitored and reviewed for accuracy; and that he would
receive specific instructions on required tasks and expected
results.”
__________________________________ FN6 The wage levels are defined in DOL's "Prevailing Wage Determination
Policy Guidance." A Level I wage rate is describes as follows: ……
(AAO FEB262015_07D2101) [Entry Level Found Insufficient
for H1-B Specialty Occupation.] At pp. 10-11.
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What do you think about this? Can an “entry level”
position that only requires the most basic and simplistic
understanding of a "body of highly specialized knowledge" be
classed as a “specialty occupation”? Does that position
deserve one of the highly coveted and sorely limited H1-B visas?
Does the proffered position satisfy any of the criteria found
at 8 C.F.R. § 214.2 (h)(4)? Nope.
It appears that quite often, H1-B petitioners get mixed-up.
They mistakenly focus on the beneficiary’s education and
experience and simply try to create a position description based
on that information. In other words, they go about their case
preparation and presentation, ass-backwards. If a qualified
U.S. Employer actually has a job that they cannot fill and need
to search overseas for a qualified, willing, and able candidate for
employment, then the specialty occupation position had
better have existed first. Mere attempts to concoct a position
and accompanying position/job description for a particular
person is actually visa fraud, do not try it. Certain actions by
such fake employers, offering fake specialty occupation jobs,
can lead to debarment by DOL, often at the urging of USCIS. As
AAO frequently states, ad nauseum, i.e., in a great number of its
non-precedential case decisions:
[T]he test to establish a position as a specialty occupation is not
the skill set or education of a proposed beneficiary, but whether the
position itself requires at least a bachelor's degree in a specific
specialty (or its equivalent).
(AAO APR062015_10D2101) at p. 16. [Emphases added.]
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DOL also has another bit of information out there that I would
like to remind folks to keep in mind. The SVP is the Specific
Vocational Preparation component of Worker Characteristics
information found in the Dictionary of Occupational Titles (U.S.
Department of Labor, 1991).1 The remainder of that webpage, with
emphasis, & slight reformatting in order to fit this page, is as follows:
“Specific Vocational Preparation, as defined in Appendix C of
the Dictionary of Occupational Titles, is the amount of lapsed time
required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a
specific job-worker situation.
This training may be acquired in a school, work, military,
institutional, or vocational environment. It does not include the orientation
time required of a fully qualified worker to become accustomed to the
special conditions of any new job. Specific vocational training includes:
vocational education, apprenticeship training, in-plant training, on-the-job
training, and essential experience in other jobs.
Specific vocational training includes training given in any of the
following circumstances:
1. Vocational education (high school, commercial or shop training,
technical school, art school, and that part of college training which is
organized around a specific vocational objective)
2. Apprenticeship training (for apprenticeable jobs only)
3. In-plant training (organized classroom study provided by an
employer)
4. On-the-job training (serving as learner or trainee on the job under
the instruction of a qualified worker)
5. Essential experience in other jobs (serving in less responsible jobs,
which lead to the higher-grade job, or serving in other jobs which
qualify).
1 See: https://www.onetonline.org/help/online/svp
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The following is an explanation of the various levels of specific
vocational preparation:
Level Time
1. Short demonstration only
2. Anything beyond short demonstration up to and including 1 month
3. Over 1 month up to and including 3 months
4. Over 3 months up to and including 6 months
5. Over 6 months up to and including 1 year
6. Over 1 year up to and including 2 years
7. Over 2 years up to and including 4 years
8. Over 4 years up to and including 10 years
9. Over 10 years
Note: The levels of this scale are mutually exclusive and do not
overlap.
U.S. Department of Labor. (1991). Dictionary of Occupational
Titles (Rev. 4th ed.). Washington, DC: U.S. Government Printing Office.”
The final piece of the DOL job classification puzzle that I want to
bring to the forefront is the Job Zone information, also found easily
enough on DOL’s website. The SVP and Job Zone go hand in hand and
obviously guide DOL in determining that Wage Rate Level for LCAs.
Here is an excerpt, but as with the other broad information
categories included, this is only part of what is available. Also, please
try to remember what kind of analysis goes into choosing a the
appropriate Rate Level for LCAs. Then remember that USCIS has this
and, much more information, readily available and uses it!
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O*NET OnLine Help Job Zones
Overview
A Job Zone is a group of occupations that are similar in:
how much education people need to do the work, how much related experience people need to do the work, and how much on-the-job training people need to do the work.
The five Job Zones are:
Job Zone 1 - occupations that need little or no preparation Job Zone 2 - occupations that need some preparation Job Zone 3 - occupations that need medium preparation Job Zone 4 - occupations that need considerable preparation Job Zone 5 - occupations that need extensive preparation
Job Zone One: Little or No Preparation Needed
Education Some of these occupations may require a high school diploma or GED certificate.
Related Experience
Little or no previous work-related skill, knowledge, or experience is needed for these occupations. For example, a person can become a waiter or waitress even if he/she has never worked before.
Job Training Employees in these occupations need anywhere from a few days to a few months of training. Usually, an experienced worker could show you how to do the job.
Job Zone Examples
These occupations involve following instructions and helping others. Examples include taxi drivers, amusement and recreation attendants, counter and rental clerks, nonfarm animal caretakers, continuous mining machine operators, and waiters/waitresses.
SVP Range (Below 4.0)
Job Zone Two: Some Preparation Needed
Education These occupations usually require a high school diploma.
Related Experience
Some previous work-related skill, knowledge, or experience is usually needed. For example, a teller would benefit from experience working directly with the public.
Job Training Employees in these occupations need anywhere from a few months to one year of working with experienced employees. A recognized apprenticeship program may be associated with these occupations.
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Job Zone Examples
These occupations often involve using your knowledge and skills to help others. Examples include sheet metal workers, forest fire fighters, customer service representatives, physical therapist aides, salespersons (retail), and tellers.
SVP Range (4.0 to < 6.0)
Job Zone Three: Medium Preparation Needed
Education Most occupations in this zone require training in vocational schools, related on-the-job experience, or an associate's degree.
Related Experience
Previous work-related skill, knowledge, or experience is required for these occupations. For example, an electrician must have completed three or four years of apprenticeship or several years of vocational training, and often must have passed a licensing exam, in order to perform the job.
Job Training Employees in these occupations usually need one or two years of training involving both on-the-job experience and informal training with experienced workers. A recognized apprenticeship program may be associated with these occupations.
Job Zone Examples
These occupations usually involve using communication and organizational skills to coordinate, supervise, manage, or train others to accomplish goals. Examples include food service managers, electricians, agricultural technicians, legal secretaries, occupational therapy assistants, and medical assistants.
SVP Range (6.0 to < 7.0)
Job Zone Four: Considerable Preparation Needed
Education Most of these occupations require a four-year bachelor's degree, but some do not.
Related Experience
A considerable amount of work-related skill, knowledge, or experience is needed for these occupations. For example, an accountant must complete four years of college and work for several years in accounting to be considered qualified.
Job Training Employees in these occupations usually need several years of work-related experience, on-the-job training, and/or vocational training.
Job Zone Examples
Many of these occupations involve coordinating, supervising, managing, or training others. Examples include accountants, sales managers, database administrators, teachers, chemists, art directors, and cost estimators.
SVP Range (7.0 to < 8.0)
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Job Zone Five: Extensive Preparation Needed
Education Most of these occupations require graduate school. For example, they may require a master's degree, and some require a Ph.D., M.D., or J.D. (law degree).
Related Experience
Extensive skill, knowledge, and experience are needed for these occupations. Many require more than five years of experience. For example, surgeons must complete four years of college and an additional five to seven years of specialized medical training to be able to do their job.
Job Training Employees may need some on-the-job training, but most of these occupations assume that the person will already have the required skills, knowledge, work-related experience, and/or training.
Job Zone Examples
These occupations often involve coordinating, training, supervising, or managing the activities of others to accomplish goals. Very advanced communication and organizational skills are required. Examples include librarians, lawyers, sports medicine physicians, wildlife biologists, school psychologists, surgeons, treasurers, and controllers.
SVP Range (8.0 and above)
revious: Scales, Ratings, and Standardized Scores Next: Specific Vocational Preparation (SVP) back to OnLine Help table of contents
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation"
as an occupation that requires:
(A) theoretical and practical application of a body of highly specialized
knowledge, and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the United States.
Dated this 26th day of April, 2015.
X /s/ Joseph P. Whalen
That’s my two-cents, for now!