What should you do if a USCIS RFE claims you were underpaid during a previous H-1B period?

Immigration Law

Phil (Immigration Phil)

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For the specialty occupation issue, the U.S. Citizenship and Immigration Services (USCIS) requires that the position must meet one of the following criteria: a bachelor's degree or higher is normally the minimum requirement for entry into the particular position; the degree requirement is common to the industry in parallel positions among similar organizations; the employer normally requires a degree or its equivalent for the position; or the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with attainment of a bachelor's degree or higher. This standard is set out in the specialty occupation regulations at 8 CFR § 214.2(h)(4)(iii)(A).

Regarding the underpayment issue, maintaining H-1B status requires that the beneficiary be paid the required wage as stated in the Labor Condition Application (LCA) filed with the Department of Labor. The wage must be the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment. This wage obligation stems from the LCA attestation requirements under the Immigration and Nationality Act, 8 U.S.C. § 1182(n), and the related Department of Labor wage regulations at 20 CFR § 655.731.

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Immigration RFE related query.

Lexi, Chatbot

I understand that dealing with an RFE can be stressful. Can you please share what type of immigration application or petition the RFE is related to?

H1B.

Lexi, Chatbot

Have you received any specific instructions or documents requested in the RFE?

Yes I did.

Lexi, Chatbot

Is there anything else the Immigration Lawyer should know before I connect you? Rest assured they'll be able to help with your H1B RFE.

Yes.

Phil (Immigration Phil)

Hi, my name is Phil, and I'd be happy to help today! What questions did you have on the H-1B RFE?

Hi, I recently received a Request for Evidence (RFE) for my H-1B visa transfer. The notice questions whether my position meets the criteria for a specialty occupation. Additionally, it highlights a potential issue of underpayment based on pay stubs from my previous employer. I would appreciate your advice on how to handle both of these concerns and what documentation or explanation would be required to respond successfully.

Phil (Immigration Phil)

Could you tell me more about the job duties and responsibilities for the position in question? This will help in addressing the specialty occupation concern. Also, have you discussed this with your employer? They are really the only person or entity that has the proper documentation to satisfy the RFE response.

I have already discussed this with my employer and they are already looking into it. These are the job duties and responsibilities: leading the development of scalable React.js, JavaScript, TypeScript, HTML5, and CSS3; translating business and technical requirements by closely collaborating with product owners, designers, and backend teams; building and maintaining a component and design system; developing and integrating modern authentication mechanisms such as JWT and OAuth2; collaborating on planning, estimation, and deliverables using Agile/Scrum methodologies; performing detailed code reviews for developers across the UI team; participating in system analysis and alignment with overall project goals and scalability requirements; implementing optimization strategies, code splitting, and tuning for faster LCP, TTI, and CLS scores; creating and maintaining technical references for internal development teams; providing post-deployment support with cross-functional teams for root cause analysis; working closely with backend developers to align front end data models deployed in enterprise systems; and supporting client-side integration compatibility and accessibility compliance.

Phil (Immigration Phil)

Thanks for sharing the job duties and responsibilities. This information is very helpful. Regarding the underpayment issue, could you provide more details about the pay discrepancy highlighted in the RFE? For example, how does your current salary compare to the prevailing wage for your position and location?

This is my RFE query regarding underpayment: the beneficiary was previously employed as an H-1B nonimmigrant with another employer, and I am now seeking to extend or amend the beneficiary's stay with a new H-1B employer. I must establish that the beneficiary maintained status throughout the previous H-1B approval period by working consistent with the terms and conditions of the previously approved petition through the date the present petition was filed. To satisfy this requirement, I submitted pay statements for the beneficiary. The previous petition provided a certified LCA for a wage rate of $98,600.00 per year paid to the nonimmigrant worker. The beneficiary arrived in the U.S. on May 4, 2025. Based on the monthly pay per statement and the year-to-date listed, it appears the beneficiary has not been paid as listed on the petition and certified LCA. I may still submit evidence to demonstrate that the beneficiary maintained status from the date previously obtained through the date the present petition was filed, including pay records, payroll summaries or W-2s, work schedules, tax returns, documented work product, performance reviews, and employment history records.

Phil (Immigration Phil)

I may be confused. Is the RFE alleging that your prior employer was underpaying you?

Yes.

Phil (Immigration Phil)

Were you actually being underpaid?

My H1B RFE is on transfer. Not with the current employer, but with the previous employer I was underpaid.

Phil (Immigration Phil)

What am I supposed to do for the underpayment issue?

Phil (Immigration Phil)

To address the underpayment issue in your H-1B RFE, here's what you can do:

Gather evidence of payment. Collect all pay stubs, W-2 forms, and any other payroll records from your previous employer. These documents will help demonstrate the wages you received during your H-1B employment.
Review the Labor Condition Application (LCA). Compare the wage listed on your LCA with the wages you were actually paid. This will help identify any discrepancies and prepare you to explain them.
Prepare an explanation. If there was a legitimate reason for the underpayment, such as unpaid leave or a temporary reduction in hours, prepare a written explanation. Include any supporting documents, like leave approvals or correspondence with your employer.
Compile additional supporting documents. Gather any additional documents that can support your case, such as work schedules, performance reviews, or examples of work product. These can help demonstrate that you maintained your H-1B status by fulfilling your job duties.
Consult with your employer. Work with your current employer to prepare a response to the RFE. They may need to provide additional documentation or explanations to support your case.
Submit a comprehensive response. Once you have gathered all necessary documents and explanations, submit a comprehensive response to USCIS, including a cover letter summarizing your response and organizing the documents clearly.

To submit the documents related to my previous employment history, I have contacted my previous employer, and they requested a copy of the RFE. They also indicated that they may want to communicate with my current employer's attorney. I wanted to check with you before proceeding: would it be appropriate to share this information with my previous employer?

Phil (Immigration Phil)

Yes, it would still be appropriate. However, I'd have your new attorneys do that communication on your behalf rather than you handling it yourself.

Also, is it okay to share the RFE document with my previous employer?

Phil (Immigration Phil)

I don't see an issue with it, as long as your current employer is okay with sharing that with them.

Also, what is the right way of handling the underpayment concern as per the RFE to get a successful response?

Phil (Immigration Phil)

To handle the underpayment concern effectively, ensure you gather all relevant documentation, such as pay stubs, W-2 forms, and any correspondence with your previous employer regarding your salary. Prepare a clear explanation for any discrepancies, such as unpaid leave or reduced hours, and include supporting documents. Work closely with your current employer's attorney to compile a comprehensive response to the RFE, addressing each point raised by USCIS. This collaborative approach will help ensure a successful response. There needs to be a reason why you were underpaid, or evidence to show that your employer has caught back up with their pay obligations to you under the LCA.

Also, is this underpayment going to affect me in any other ways, such as rejection of my H1B transfer?

Phil (Immigration Phil)

The underpayment issue could potentially affect your H-1B transfer if it's not adequately addressed in your response to the RFE. However, by providing a thorough explanation and supporting documentation, you can mitigate the risk of rejection. It's crucial to demonstrate that you maintained your H-1B status and that any discrepancies were resolved or had legitimate reasons. Working closely with your current employer's attorney will help ensure that your response is strong and comprehensive. These issues are often able to be overcome just by providing legitimate reasoning and correction of the underpayment.

Thank you so much

Phil (Immigration Phil)

My pleasure! Have a great weekend!

Phil (Immigration Phil)

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